# Petition for Writ of Certiorari — City of Gettysburg, South Dakota v. United States (No. 06-235)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2006

## Text

(() Supreme Court, U.S.
rimer

06-235 AuG 14 2006

No, OFFICE OF THE CLERK

Jn the Supreme Court of the Anited States

Ciry OF GETTYSBURG, SOUTH DAKOTA,
Petitioner,
V.

UNITED STATES,
Respondent.

On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Federal Circuit

PETITION FOR A WRIT OF CERTIORARI

M. MILLER BAKER

Counsel of Record
MICHAEL S. NADEL
JEFFREY W. MIKONI
McDermott? WILL & EMERY LLP
600 Thirteenth Street, N.W.
Washington, D.C. 20005
(202) 756-8000

Attorneys for Petitioner
City of Gettysburg, South Dakota

August 14, 2006

QUESTION PRESENTED

Whether this Court should exercise its supervisory
authority to require that federal courts of appeals articulate
some explanation or rationale for the disposition of appeals
taken as a matter of statutory right.

ii
PARTIES TO THE PROCEEDING

The parties to this proceeding are the same as the parties
to the proceeding in the United States Court of Appeals for
the Federal Circuit: Petitioner City of Gettysburg, South
Dakota; and Respondent United States.

iii

TABLE OF CONTENTS

Question Presented....cccccecssssessee A ATS eneseneeses Oe Me NOI
Parties to the PHOCEEMING..........sssssesssssesessessessressencseessaqeeseenens
| Ne er PN vsiiiadevdicacnscsiinndendtancaturiiitdetaieeaissacensiamiiities
IE EES ER ELLE ATEN EAN SETTLER TE OSE

Jurisdiction

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NR OE TIN Mah bscictsdaiinssies:sstiecnenasdineptcnccdosnineansiensoanien
Reasons for Granting the Petition .............cccccsscesseeseeseereeees

!. By Summarily Affirming Without Explanation,
Courts of Appeals Insulate Their Decisions
PPM FOYER OY TIE CIE, nc ccsceesnsecnrsviccnssoconsesivescoiencs

Il. The Circuits Are Split Regarding the

. Permissibility of Summary Dispositions That
Provide No Explanation for the Rationale of the
ig NC NIE PIII ashes cecsegecetennesrspasceaglonpcbiclinmnchiietanacacactsede

A. The Federal, Second, Third, Fifth, and Eighth
Circuits permit appellate panels to issue
summary dispositions with no explanation of
Se PU niinccnccccticinincinis cnet cceciecmssebedbiciamedpiilenapians

B. The First, Fourth, Sixth, Seventh, Ninth,
Eleventh, and D.C. Circuits require panels to
provide at least some explanation of the
rationale for their decisions

PHC HTT HET HS HT HTHEE TOE OS SHEE HERES

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6

1]

iV

IJ]. Summary Dispositions Impose a High Cost on the
Federal Judiciary. .............ssssssssesssseessssssssssssseneenserenssen 17

IV. This Court Should Require the Courts of Appeals
to Articulate at Least Some Rationale or
Explanation for Dispositions of Appeals Taken as
SB VARTIEE OT SIMGIIOTY FRIGIN ciissscscsicoscsseseanenadeestcetedesaseses as *

Conclusion

Vv
TABLE OF AUTHORITIES

Cases
Anastasoff v. United States, 223 F.3d 898 (8th Cir.

Ashe v. Corley, 992 F.2d 540 (Sth Cir. 1993) 00... eeessteeeeees 9
Ball Corp. v. Xidex Corp., 967 F.2d 1440 (10th Cir.

Brinkley v. Harbour Rec. Club, 180 F.3d 598 (4th
Cir. 1999)

Camarillo v. McCarthy, 998 F.2d 638 (9th Cir.

Conn. Board of Pardons v. Dumschat, 452 U.S. 458,
STE SEED sstsiecencuntvevnsiinseinacvinirancencblegniaainedonaentaa ee

Dickerson v. United States, 530 U.S. 428 (2000)

Frazier v. Heebe, 482 U.S. 641 (1987).........scscssseeseerersosees 5, 6
Harris v. Secretary, 126 F.3d 339 (D.C. Cir. 1997)

Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001)

In re Rules of the U.S. Ct. of Appeals for the Tenth
Cir., Adopted Nov. 18, 1986, 955 F.2d 36 (10th
Cir. 1992)

Information Sys. & Networks Corp. v. United States,
994 F.2d 972, 795 (Fed. Cir. 1993)

Kleinknecht v. Gettysburg College, 989 F.2d 1360
NN UN cs casaievadsciusccenaniaci susie seecaubaneiaicnieesiuasciaes 9

LeTulle v. Scofield, 308 U.S. 415, 416 (1940)

vi
Moore, Owen, Thomas & Co. v. Coffey, 992 F.2d

Be Gls SIE iaetbtchvececsvsvenonecninnseinabasedbiedenratatesal 9
United States v. Forness, 125 F.2d 928 (2d Cir.

PIGUET isenissisiiecaviestdictpusinsindiipsiiciescaninnnsieipde tiaasalaninclsssianeniedaiuiis 18
Statutes and Court Rules
Fee cs eee wickets beciidennpdeseiesciensierniiiaioneslaiiaiiimauabibiacdeald 6
S. Cr. &. 10 bia oaseasca aisbdachiecltn davai iaeidealadtsiaapldaa tendo 10
Ri SG Be We io ssccirhcsinceesiisatesiccalpetnn da bianiapialiicadcntdaticeiaiaibiad 8
FE Saks. Wie SP hcksessascptninsicinnseisatanstipietdionimndeineuaumannmeneien 16
BEE: Hie PAE cicincbivikakstinhidsniiabiniscniiheshdaeanainnabasenimanadamanas 13
FEN, Wi Rl nctasicidibiabnnskdintimatiagunaimusioonmamaane 13
ATH CIR. R. Fetiotcin\shihimsbsiiniigticsnatsijuiensiapiaaceipusitanenmaiinieata vateieined 13,14
SOAs Ths BED cciccesibintisstoneennincioeeninaiibeinianeiniiageainads 11,12
TES Rs Bis ie sresaccnncivhinicsninnavccsovasueisenthnengedsicnmpiniaiantaaainietiiiadtin 16
URE EE Fis i iticccicectssnnsaiairiachinbaccpsabniiietapiibenmecnincays 11,12
FRE Ui i se csiniicisdisicdasoinemncninennimnmniaaiadioieniitan 15
DENTE is Fe cess sncisiececncicnicesicsesivnnctcertncinnininteionmmantain 14
PTE CR Te DUR seviniccsntscsnansctvepititecsiutiiniiiantoasiesamnaiaial j2
1 ith Cir. R. 36-1 (prior to Aug. 1, 2006) .......... cc eeeeeeees 16, 17
EE Mois Ws: I stiinccnsiniresiccuesialelies wbaieiaeapcabeneninbbaipnnmadibdian 15, 16
PI, CR Bis Sie vikisessinictsctctisionsnininnnitiannietcinnmagiaiatd 2,6
CED ivaceshencssichicontsickacciendeengiaieimebchiaientnninihennenpanve 8
Miscellaneous

Alvin Rubin, Bureaucratization of the Federal
Courts: The Tension Between Justice and
Efficiency, 55 NOTRE DAME L. REV. 648, 655
a csickichs tices svcescsicoeiccto oheheeidaesiaisossnteaedaphssiaaaaecaneeontoniaaaion 19

Vii

ABA COMMIS‘ = OF STANDARDS OF JUDICIAL
ADMINIS} iON, STANDARDS RELATING TO
APPELLATE COURTS (1977)

F. Coffin, THE WAYS OF A JUDGE: REFLECTIONS
FROM THE FEDERAL APPELLATE BENCH (1980)

COMMISSION ON REVISION OF THE FEDERAL COURT
APPELLATE SYSTEM, STRUCTURE AND
INTERNAL PROCEDURES: RECOMMENDATIONS
FOR CHANGE (1975)

Henry Friendly, Some Kind of Hearing, 123 U. PA.
L. REV. 1267 (1975)

Office of the Clerk, 10th Cir., Practitioners’ Guide
to the United States Court of Appeals for the
Tenth Circuit (1998)

William Reynolds & William Richman, The Non-
Precedential Precedent - Limited Publication
and No-Citation Rules in the United States
Courts of Appeals, 78 COLUM. L. REV. 1167

PHILIP SOPER, A THEORY OF LAW (1984)

Table of Proposed Revisions to the Eleventh Circuit
Rules (Apr. 3, 2006)

Patricia Wald, The Problem with the Courts: Black-
Robed Bureaucracy or Collegiality Under
Challenge, 42 MD. L. REV. 766 (1983)

No.

In the Supreme Court of the Gnited States

Ciry OF GETTYSBURG, SOUTH DAKOTA,
Petitioner,
V.

UNITED STATES,
Respondent.

On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Federal Circuit

PETITION FOR A WRIT OF CERTIORARI

The City of Gettysburg, South Dakota, respectfully
petitions for a writ of certiorari to review the judgment of the
United States Court of Appeals for the Federal Circuit in this
case.

OPINIONS BELOW

The Federal Circuit did not issue an opinion in this case;
rather, it issued a “Notice of Entry of Judgment Without
Opinion,” which is reprinted at App. 1-2. The judgment of
the Federal Circuit is reprinted at App 3. The opinion of the
Court of Federal Claims is reported at 64 Fed. Cl. 429 and is
reprinted at App. 4-59.

2
JURISDICTION

The judgment of the Federal Circuit was entered on
March 16, 2006. Upon Petitioner’s application, Chief Justice
Roberts extended the time to file a-petition for certiorari until
August 13, 2006. Docket No. 05A1126. This Court has
jurisdiction under 28 U.S.C. § 1254(1).

RULE INVOLVED

Federal Circuit Rule 36, titled “Entry of Judgment —
Judgment Without Opinion” provides:

This court may enter a judgment of affirmance
without opinion, citing this rule, when it determines
that any of the following conditions exist and an
opinion would have no precedential value:

(a) the judgment, decision, or order of the trial court
appealed from is based on findings that are not clearly
erroneous;

(b) the evidence supporting the jury’s verdict is
sufficient;

(c) the record supports summary judgment, directed
verdict, or judgment on the pleadings;

(d) the decision of an administrative agency warrants
affirmance under the standard of review in the statute
authorizing the petition for review; or

(e) a judgment or decision has been entered without
an error of law.

3
STATEMENT OF THE CASE

Petitioner City of Gettysburg, South Dakota, is an
incorporated municipality located near the Oahe Reservoir on
the Missouri River. App. 5. In the 1970s, the City made
arrangements with the United States Army Corps of
Engineers, which owned or controlled the Reservoir, to
access the Reservoir as the City’s water supply. App. 5-11.
Under those arrangements, the City constructed and operated
water transmission equipment on Corps’ property. /d. The
City used this water system for approximately two decades.

From 1995 to 1997, the Corps’ operations severely
damaged the City’s water transmission equipment both on
and off the Corps’ property. The City was forced to seek an
alternative water source. App. 11-12.

In 2000, the City brought this action against the United
States in the Court of Federal Claims, alleging that the Corps’
severe damage to the City’s water system constituted a
“taking” of City property without just compensation in
violation of the Takings Clause of the Fifth Amendment to
the United States Constitution. App. 12.

The United States moved to dismiss for failure to state a
claim on the basis that the City lacked a cognizable property
interest protected by the Takings Clause, that the City’s claim
was barred by laches, and that the City’s claim was barred by
the terms of a release contained in an easement issued by the
Corps in 1978 to the City (“1978 Easement”). The City
argued -that it did not assent to the terms of the 1978
Easement, and that in any event, the release contained in the
1978 Easement did not encompass Takings claims. After the
close of discovery, the Court of Federal Claims sua sponte
requested additional briefing by the parties as to whether the
City was equitably estopped from contesting its assent to the

4

1978 Easement. App. 13. The United States had not pleaded
equitable estoppel as an affirmative defense. App. 41.

Treating the United States’ motion to dismiss as a motion
for summary judgment, App. 15, the Court of Federal Claims
held in a 24-page published opinion that the City had a
cognizable property interest in the water transmission
equipment; damaged by the Corps, App. 30, that the City’s
claim was not barred by laches, App. 34, and the City did not
assent to the 1978 Easement, App. 40. The Court of Federal
Claims also held, however, that the government’s failure to
plead equitable estoppel in its initial pleading did not waive
the defense under Rule of the United States Court of Federal
Claims (“RCFC”) &(c), App. 41-43, that the City was
equitably estopped from contesting its assent to the 1978
Easement,. App. 43-47, and that the release in the 1978
Easement barred the City’s claims as to the City’s water
transmission equipment located both on and off the Corps’
property, App. 47-48. Accordingly, the Court of Federal
Claims entered judgment for the United States. App. 59.

The City appealed to the Federal Circuit, where the case
was fully briefed, including participation by an amicus, and
was subject to extended argument on March 6, 2006. In its
brief, the United States defended the summary judgment
below on the grounds articulated by the Court of Federal
Claims, as well as the alternative basis that the City had
assented in fact to the 1978 Easement, see Answering Brief
of the United States Appellee at 26-31 — an argument that the
Court of Federal Claims had expressly rejected. See App. 46
(“proof of [the City’s] intent [to assent to the 1978 Eastment|
... is lacking here”).

On March 16, 2006, the Federal Circuit issued a notice of
affirmance without opinion. App. 1-2. The Court’s
judgment stated: “This CAUSE having been heard and

5

considered, it is ORDERED and ADJUDGED: AFFIRMED.
See Fed. Cir. R. 36.” App. 3.

REASONS FOR GRANTING THE PETITION

In this case, the Federal Circuit affirmed the judgment of
the Court of Federal Claims without opinion. The Federal
Circuit offered only a single word: “Affirmed.” App. 3.
The Federal Circuit provid d no explanation for its
affirmance and thereby insulated its decision. from this
Court’s review, because there is no basis on which to assess
whether the merits of this case implicate a split among the
circuits on an important question of federal law.

The Federai Circuit’s action was a product of a circuit
rule permitting summary affirmance without any explanation.
Six circuits have adopted such rules. Although the other
seven circuits have adopted rules to the contrary, requiring at
least some explanation, and although the practice of issuing
summary dispositions that offer no guidance as to.a court of
appeals’ rationale has been criticized harshly by Justices of
this Court, other federal judges, and leading scholars and
members of the Bar, the harmful practice continues. This
Court should decide whether it should exercise its
supervisory power to require federal courts of appeals to
provide at least a minimal explanation of their decisions. See
Dickerson v. United States, 530 U.S. 428, 437 (2000) (“The
law in this area is clear. This Court has supervisory authority
over the federal courts, and we may use that authority to
prescribe rules of evidence and procedure that are binding in
those tribunals.’’).

This Court has recognized that a federal court “has
discretion to adopt local rules that are necessary to carry out
the conduct of its business.” Frazier v. Heebe, 482 U.S. 641,
645 (1987). A court’s “discretion in promulgating local rules
is not, however, without limits. This Court may exercise its

~

6

inherent supervisory power to ensure that these local rules are
consistent with ‘the principles of right and justice.’” Jd.
(quoting /n re Ruffalo, 390 U.S. 544, 554 (1968) (White, J.,
concurring)).' In this case, as in Frazier, the Federal
Circuit’s rule is inconsistent with the principles of justice and
American legal tradition, so this Court’s review is necessary.

I. By Summarily Affirming Without Explanation,
Courts of Appeals Insulate Their Decisions From
Review by This Court.

Federal Circuit Rule 36 permits the Federal Circuit to
summarily affirm a trial court’s ruling without opinion. The
rule may be invoked for any of several reasons, but the panel
is not required to identify which of those reasons is the basis
of the affirmance. Moreover, all of the reasons are so general
and all-encompassing as to be useless. For example, the
Federal Circuit may summarily affirm if “a judgment or
decision has been entered without an error of law.” FED. CIR.
R. 36(e). In other words, if an appellant argues that the trial
court committed legal error, and the Federal Circuit
determines that the trial court did not commit legal error, the
Federal Circuit may summarily affirm that decision without
opinion. Similarly, if the trial court grants summary
judgment, and the losing party appeals, the Federal Circuit
may summarily affirm if it believes that “the record supports
summary judgment.” /d. 36(c). The Federal Circuit may
summarily affirm the decision of an administrative agency if
the decision “wagrants affirmance under the standard of
review in the stat ne authorizing the petition for review.” Jd.
36(d). In short, under Federal Circuit Rule 36, if affirmance

' See also 28 U.S.C. § 2072(a) (“The Supreme Court shall have
the power to prescribe general rules of practice and procedure and
rules of evidence for cases in the United States district courts
(including proceedings before magistrates thereof) and courts of
appeals.”).

7

is warranted, then summary affirmance is warranted. No
_ other standard must be satisfied.

Thus, as in this case, when an Appellee defends a trial
court summary judgment on the alternative basis of an
argument that the trial court rejected, the losing Appellant
has no way of knowing whether the Federal Circuit approved
the trial court’s rationale for summary judgment, or whether
the Federal Circuit accepted the Appellee’s alternative
argument to sustain the summary judgment. Federal Circuit
Rule 36(c) provides that the trial court decision may be
summarily affirmed when “the record supports summary
judgment, directed verdict, or judgment on the pleadings.”
Under Federal Circuit Rule 36(c), it is impossible to know
the grounds upon which the Federal Court sustained the
summary judgment ruling in this case.

Critically, by summarily affirming the trial court under
Federal Circuit Rule 36, the Federal Circuit does not adopt
the trial court decision as its own. If it did, the Federal
Circuit decision would be subject to the scrutiny of this
Court. In evaluating a petition for certiorari, this Court could
determine why the Federal Circuit ruled as it did, whether the
Federal Circuit decision conflicts with the opinions of other
courts of appeals, and whether the case poses an important
question that might warrant review. As matters now stand in
this case, however, Petitioners cannot state whether the
Federal Circuit decision conflicts with the holding of other
circuits, or whether the merits of the case pose an important
question, because the grounds for the Federal Circuit’s
decision are unknown.

The nature of the arguments advanced by the parties on
appeal in this case illustrates how Federal Circuit Rule 36 and
similar rules in several other circuits effectively insulate
courts of appeals’ summary dispositions from this Court's
review. The Court of Federal Claims entered judgment for

8

the United States because it held that the City was equitably
estopped from contesting applicability of the 1978
Easement.’ The United States, however, had failed to assert
equitable estoppel in its initial responsive pleading as
required by RCFC 8(c);> the court raised the equitable
_estoppel issue sua sponte. The Court of Federal Claims held
that failure to plead an affirmative defense does not
automatically extinguish the defense under RCFC 8(c), and

that the defense can be later revived absent any prejudice.
See App. 41-43.

If, in affirming the judgment of the Court of Federal
Claims, the Federal Circuit had expressly endorsed this
proposition, it would have taken sides in a long-standing
circuit split. The D.C. Circuit and the Fifth Circuit hold that
an affirmative defense enumerated by Federal Rule of Civil
Procedure 8(c)' is waived, and cannot (as here) be later raised

? The Court of Federal Claims held as a factual matter that that
the City did not actually assent to the 1978 Easement (and thus that
document’s release provision). See App. 47 (“proof {of the City’s]
intent [to agree to the Easement] is lacking here”).

* RCFC 8(c) provides:

Affirmative Defenses. In pleading to a preceding pleading,
a party shall set forth affirmatively accord and satisfaction,
arbitration and award, assumption of risk, contributory
negligence, discharge in bankruptcy, duress, estoppel,
failure of consideration, fraud, illegality, injury by fellow
servant, laches, license, payment, release, res judicata,
statute of frauds, statute of limitations, waiver, and any
other matter constituting an avoidance or affirmative
defehse. When a party has mistakenly designated a defense
as a counterclaim or a counterclaim as a defense, the court
on terms, if justice so requires, shall treat the pleading as if
there had been a proper designation.

' Federal Rule of Civil Procedure 8(c) is identical to RCFC
8(c). which is reprinted in note 4, supra. See FED. R. Civ. P. 8(c).

f

Oe Ee ee eee a

9

by dispositive motion, even in the. absence of prejudice. See
Harris v. Secretary, 126 F.3d 339, 343 (D.C. Cir. 1997) (“it
is well settled that a party’s failure to plead an affirmative
defense .. . generally results in waiver of that defense and its
exclusion from the case”); Ashe v. Corley, 992 F.2d 540, 545
n.7 (Sth Cir. 1993) (rejecting an argument on statute of
limitations in a summary judgment motion because the
defense had not been pled in the answer).

Meanwhile, as the D.C. Circuit acknowledged in Harris,
several other circuits follow the contrary approach taken by
the Court of Federal Claims and hold that “absent unfair
Surprise or prejudice to the plaintiff, a defendant's affirmative
defense is not waived when it is first raised in a pre-trial
dispositive motion.” Brinkley v. Harbour Rec. Club, 180 F.3d
598, 612 (4th Cir. 1999) (rejecting the D.C. and Fifth Circuit
view); see also Blaney v. United States, 34 F.3d 509, 512 (7th
Cir. 1994) (stating that an unpleaded untimeliness defense
could be raised in motion to dismiss); Camarillo v.
McCarthy, 998 F.2d 638, 639 (9th Cir. 1993) (holding that an
affirmative defense may be raised at summary judgment
absent prejudice to opposing party); Moore, Owen, Thomas
& Co. v. Coffey, 992 F.2d 1439, 1445 (6th Cir. 1993)
(asserting that an affirmative defense may be raised in
response to summary judgment motion); Kleinknecht v.
Gettysburg College, 989 F.2d 1360, 1374 (3d Cir. 1993)
(noting that an affirmative defense may be raised at summary
judgment absent prejudice); Ball Corp. v. Xidex Corp., 967
F.2d 1440, 1443-44 (10th Cir. 1992) (raising affirmative
defense in summary judgment motion preserved defense for
trial three months later). Such a circuit split on an important

The Federal Circuit accords identica! provisions of the Rules of the
Court of Federal Claims and the r «ral Rules of Civil Procedure
the same interpretation. See, e.g., mwormation Sys. & Networks
Corp. v. United States, 994 F.2d 792, 795 (Fed. Cir. 1993).

10

issue of federal law is the stuff of which successful petitions
are made. See S. Cr. R. 10(a).

On the other hand, the United States also defended the
judgment of the Court of Federal Claims on the alternative
ground that the City had assented to the 1978 Easement as a
matter of fact, see Answering Brief of the United States
Appellee at 26-31, even though the Court of Federal Claims
rejected that argument. See App. 40. If the Federal Circuit
agreed with the government’s alternative argument -and
affirmed on that basis, the Federal Circuit’s decision rests on
a factual determination not ordinarily reviewed by this Court.
See S. CT. R. 10 (“A petition for a writ of certiorari is rarely
granted when the asserted error consists of erroneous factual
findings.”)? ;

It is also possible that the Federal Circuit affirmed the
judgment of the Court of Federal Claims based on a theory :
that was never briefed before it or in the trial court. Such an
action could itself warrant review by this Court. See, e.g.,
LeTulle v. Scofield, 308 U.S. 415, 416 (1940) (“We took this
case because the petition for certiorari alleged that the Circuit
Court of Appeals had based its decision on a point not.
presented or argued by the litigants, which the petitioner had
never had an opportunity to meet by the production of
evidence.”).

Ultimately, there is no way to know what rationale
supports the Federal Circuit’s decision. Whether the Federal
Circuit agreed with the legal principle expressed in the Court
of Federal Claims’ opinion (the United States’ failure to
plead the affirmative defense of equitable estoppel did not
result in waiver of that defense under RCFC 8(c), and the
City was indeed equitably estopped from contesting
application of the 1978 Easement), or the alternative factual
argument advanced by the United States (the City agreed to
the 1978 Easement), or affirmed for novel reasons all its own

: 11

can be the subject only of speculation. Thus, given this
Court’s rules regarding the grounds for granting the writ of
certiorari, the Federal Circuit has effectively denied this
Court the opportunity to review the decision in this case.

li. The Circuits Are Split Regarding the Permissibility of
“Summary Dispositions That Provide No Explanation
for the Rationale of the Court of Appeals.

The Federal Circuit is joined by five other circuits in
placing its decisions beyond the review of this Court. The
other seven circuits, however, have rules which prevent an
appellate panel from rendering a decision without providing
at least some guidance as to the reasoning for the decision.
The result is a lack of uniformity among the circuits; some
promulgate decisions whose suitability for review by this
Court can be ascertained, while others, like the Federal
Circuit in this case, have effectively rendered themselves
courts of last resort.

A. The Federal, Second, Third, Fifth, and Eighth
Circuits permit appellate panels to issue summary
dispositions with no explanation of their reasoning.

Federal Rule Circuit 36 allows the Federal Circuit to
summarily affirm any trial court opinion in any case, no
matter how meritorious, for any reason, without providing
any guidance as to its rationale or citation to any authority
beyond the rule itself. The Fifth Circuit and the Eighth
Circuit have adopted materially identical rules. See STH Cir.
R. 47.6; 8TH Cir. R. 47B.°

> Fifth Circuit Rule 47.6 provides: “The judgment or order
appealed may be affirmed or enforced without opinion when the
court determines that an opinion would have no precedential value
and that any one or more of the following circumstances exists and
is dispositive of a matter submitted for decision: (1) that a

12

In the Tenth Circuit, a panel “need not write an extensive
disposition in every appeal but may, in its discretion, use a
terse judgment such as the one word ‘affirmed.’” Office of
the Clerk, 10th Cir., Practitioners’ Guide to the United States
Court of Appeals for the Tenth Circuit (1998). This may be
done even in cases deemed by the court to be important. See
10rH Cir. R. 36.1 (“The court does not write opinions in
every case. The court may dispose of an appeal or petition
without written opinion. Discussion without opinion does not
mean that the case is unimportant. \t means that the case
does not require application of new points of law that would
make the decision a valuable precedent.”) (emphasis added).
It is the Tenth Circuit litigant’s misfortune that this Court
might wish to review a decision on a question of law even if
the decision does not announce new doctrine — if, for

judgment of the district court is based on findings of fact that are
not clearly erroneous; (2) that the evidence in support of a jury
verdict is not insufficient; (3) that the order of an administrative
agency is supported by substantial evidence onthe record as a
whole; (4) in the case of a summary judgment, that no genuine
issue of material fact has been properly raised by the appellant; and
(5) no reversible error of law appears. In such case, the court may,
in its discretion enter either of the following orders: ‘AFFIRMED.
See STH Cir. R. 47.6.” or “ENFORCED. See Sti CIR. R. 47.6.”

° Eighth Circuit Rule 47B provides: “The judgment or order
appealed may be affirmed or enforced without opinion if the court
determines that an opinion would have no precedential value and
that any of the following circumstances disposes of the matter
submitted for decision: (1) a judgment of the district court is based
on findings of fact that are not clearly erroneous; (2) the evidence
in support of a jury verdict is not insufficient; (3) the order of an
administrative agency is supported by substantial evidence on the
record as a whole; (4) no error of law appears. The court in its
discretion, with or without further explanation, may enter either of
the following orders: ‘AFFIRMED. See 8TH Cik. R. 47B.” or
“ENFORCED. See 8T1U CIR. R. 47B.””

13

example, another circuit has reached a conclusion contrary to
the law. of the Tenth Circuit after the Tenth Circuit’s
announcement of its doctrine but before the doctrine’s rote
application in the litigant’s case. The Tenth Circuit’s practice
of summary disposition nullifies the possibility of such a
review.

The Second and Third Circuits at least encourage panels
to provide explanations of their actions, but the rules are not
mandatory. In the Second Circuit, when a case is resolved by
summary decision, the panel may, but is not required to,
provide an explanation for its decision. See 2D Cir. R. 0.23
(Accordingly, in those cases in which decision is unanimous
and each judge of the panel believes that no jurisprudential
purpose would be served by a written opinion, disposition
with be made... by summary order. Where disposition is by
summary order, the court may append a brief written
Statement to that order.”) (emphasis added). The Third
Circuit’s rule is similarly permissive. See 3b Cir. R. 6.3.2
(“A: judgment order may state that the case is affirmed by
reference to the opinion of the district court or decision of the
administrative agency and may contain one or more
references to cases or other authorities.”) (emphasis added).
Thus, while the Second and Third Circuit rules suggest that
an explanation is desirable, in substance, they are no different
from the Federal, Fifth, Eighth, and Tenth Circuit rules; the
court of appeals still may summarily affirm a trial court
ruling while providing no explanation and thereby shielding
its decision from review by this Court.

B. The First, Fourth, Sixth, Seventh, Ninth, Eleventh,
and D.C. Circuits require panels to provide at least
some explanation of the rationale for their decisions.

In the other circuits, the rule is the opposite. The Fourth
Circuit allows for summary decisions, but such a decision
must “set forth .. . the reason or reasons therefor.” 4TH CIR.

14

R. 36.3.’ The Ninth Circuit, which is by far the largest, most
over-burdened circuit and which must wade through the
largest number of appeals, nevertheless in every case
“provide[s] the parties and the district court with a concise
explanation of [the] court’s decision.” 9TH Cir. R. 4.3.a.°
Ninth Circuit Rule 4.3.a requires a recitation of “information
crucial to the result,” which includes the decisive facts and
citation to relevant precedent. /d. Thus, in the Fourth and
Ninth Circuits, a litigant (and this Court) would always know
whether the court of appeals’ decision conflicts with those of
other circuits or state courts of last resort, and whether the
question on which the decision turned is of exceptional
importance.

” Fourth Circuit Rule 36.3 provides: “If all judges on a panel
of the Court agree following oral argument that an opinion in a
case would have no precedential value, and that summary
disposition is otherwise appropriate, the Court may decide the
appeal by summary opinion. A summary opinion identifies the
decision appealed from, sets forth the Court’s decision and the
reason or reasons therefore, and resolves any outstanding motions
in the case. It does not discuss the facts or elaborate on the Court’s
reasoning.”

® Ninth Circuit Rule 4.3.a provides: “A memorandum
disposition cannot be cited as precedent. Unlike an opinion for
publication, which is designed to clarify the law of the circuit, a
memorandum disposition is designed only to provide the parties
and the district court with a concise explanation of this court’s
decision. Because the parties and the district court are aware of the
facts, procedural events and applicable law underlying the dispute,
the disposition need recite only such information crucial to the
result. Accordingly, all that is necessary is a statement such as the
following: Defendant’s statements were volunteered rather than
made in response to police questioning, and were therefore
admissible. United States v. Cornejo, 598 F.2d 554, 557 (9th Cir.
1979). AFFIRMED.”

® Even Judge Kozinski, an ardent defender of the practice of
issuing non-precedential decisions, maintains that a non-

‘

ee ee ee

15

Similarly, the Seventh Circuit allows cases to be decided
either by opinion or by order; opinions are to be published,
and orders are to be unpublished. 71H Cir. R. 53(b).'° In the
instance of an unpublished order, the panel must state the
reasons for the judgment, either in the order itself or orally
from the bench. Jd. 53(c)(2).'' Thus, in every case, the
litigant knows the rationale behind a judgment of the Seventh
Circuit.

Likewise, the D.C. Circuit permits “abbreviated
dispositions,” but it expressly requires that the disposition
contain “a notation of precedents” or be “accompanied by a
brief memorandum. See D.C. Cir. R. 36(b).'7

precedential disposition should contain an explanation for the

result, however brief. See Hart v. Massanari, 266 F.3d 1155, 1178
| (9th Cir. 2001) (“An unpublished disposition is, more or less, a

letter from the court to the parties familiar with the facts,
| announcing the result and the essential rationale of the court’s
decision.” (emphasis added).

'° Seventh Circuit Rule 53(b) provides: “The court may
dispose of an appeal by an order or by an opinion, which may be
signed or per curiam. Orders shall not be published and opinions
shall be published.”

'' Seventh Circuit Rule 53(c)\(2) provides: “When the decision
does not satisfy the criteria for publication, as stated above, it will
be filed as an unpublished order. The order will ordinarily contain
reasons for the judgment, but may not do so if the court has
announced its decision and reasons from the bench. A statement of
facts may be omitted from the order or may not be complete-or
detailed.”

' D.C. Circuit Rule 36(b) provides: “The court may, while
according full consideration to the issues, dispense with published
Opinions where the issues occasion no need therefor, and confine
its action to such abbreviated disposition as it may deem
appropriate, e.g., affirmance by order of a decision or judgment of

16

The First Circuit’s rules indicate that its summary
decisions reveal the basis of the reasoning applied. See ST
Cir. R. 36 (“An opinion is used when the decision calls for
more than a summary explanation.”) (emphasis added). The
Sixth Circuit’s rules, which allow for dispositions from the
bench, contemplate that judges will state the reasons for their
rulings. See 6TH CiR. R. 36."

Until recently, the Eleventh Circuit permitted affirmances
without opinion. Eleventh Circuit Rule 36-1 was
substantially the same as Federal Circuit Rule 36. See 11th
Cir. R. 36-1 (prior to Aug. 1, 2006).'* However, the Eleventh

;

a court or administrative agency, a judgment or affirmance or
reversal, containing a notation of precedents or accompanied by a
brief memorandum. If the parties have agreed to such disposition,
they may so state in their briefs or stipulate at any time prior to
decision. In any such case the court will promptly state in their
briefs or may so stipulate at any time prior to decision. In any such
case the court will promptly issue a judgment unless compelling
reasons dictate otherwise.”

'3 Sixth Circuit Rule 36 provides: “In those cases in which the
decision in unanimous and each judge of the panel believes that no
jurisprudential purpose would be served by a written opinion,
disposition of the case may be made in open court following oral
argument. A written judgment shall be signed and entered by the
clerk in accordance with the decision of the panel from the bench.
Counsel may obtain from the clerk a copy of the transcript of the
decision as it was announced from the bench.”

'4 Before August 1, 2006, Eleventh Circuit Rule 36-1 provided:
“Affirmance Without Opinion. When the Court determines that
any of the following circumstances exist: (a) the judgment of the
district court is based on findings of fact that are not clearly
erroneous: (b) the evidence in support of a jury verdict is
sufficient; (c) the order of an administrative agency is supported by
substantial evidence on the record as a whole; (c) the summary
judgment, directed verdict, or judgment on the pleadings is

17

Circuit rescinded that rule, effective August 1, 2006. In
proposing the elimination of the rule, the Eleventh Circuit
stated: “The rule is proposed to be rescinded, since only a
miniscule portion of appeals are currently terminated in this
manner.” Table of Proposed Revisions to the Eleventh
Circuit Rules (Apr. 3, 2006) at 2. Thus, the Eleventh Circuit
no longer permits its panels to do what the Federal Circuit
has done in this case.

The circuits, therefore, are split. This lack of uniformity
results from the conflicting opinions of the judges of different
circuits. This split among circuit rules is functionally no
different from a split among circuit case holdings. In cach
instance, the result of litigation in federal court may be
determined by the circuit in which suit happens to be filed.
This Court should resolve the split.

Il. Summary Dispositions Impose a High Cost on the
Federal Judiciary.

The use by the courts of appeals of summary dispositions
that provide only a result, with no attempt to provide the
rationale supporting the court’s decision, has been subject to
sustained criticism from both academic writers and justices
and circuit court judges themselves. The most obvious
objection to this practice is that it removes one of the more
effective devices to ensure the accuracy of the court’s
decision. As noted by Judge Coffin,

[a] remarkably effective device for detecting fissures
in accuracy and logic is the reduction to writing of the
results of one’s thought processes. ... Somehow, a

supported by the record; (e) the judgment has been entered without
a reversible error of law; and an opinion would have no
precedential value, the judgment or order may be affirmed or
enforced without opinion.”

18

decision mulled over in one’s head or talked about in
conference looks different when dressed up in written
words and sent out into the sunlight. ... [W]e may
be in the very middle of an opinion, struggling to
reflect the reasoning “all judges have agreed on, only
to realize that it simply “won’t write.” The act of
writing tells us what was wrong with the act of
thinking.

F. Coffin, THE WAYS OF A JUDGE: REFLECTIONS FROM THE
FEDERAL APPELLATE BENCH 57 (1980); see also Henry
Friendly, Some Kind of Hearing, 123 U. PA. L. Rev. 1267,
1292 (1975) (“The necessity for justification is a powerful
preventive of wrong decisions.”); cf United States vy.
Forness, 125 F.2d 928, 942 (2d Cir. 1942) (Frank, J.) (“[A]s
every judge knows, to set down in precise words the facts as
he finds them is the best way to avoid carelessness in the
discharge of that duty: Often a strong impression that. . . the
facts are thus-and-so gives way when it comes to expressing
that impression on paper.”).

The summary disposition also removes what has “always
been understood to be the principal constraint on judges: the
obligation to reach decisions that are justified by the law and
not simply the judge’s personal preference for how a case
should be resolved.” See generally PHILIP SOPER, A THEORY
or LAW I11 (1984). As noted by the principal academic
commentators in this area, “[a] key characteristic of decisions
without opinions is their failure to provide the parties or the
court below with any hint as to the court’s reasoning.
Accordingly, the practice under these rules has been
uniformly condemned by commentators, lawyers, and
judges.” William Reynolds & William Richman, The Non-
Precedential Precedent - Limited Publication and No-
Citation Rules in the United States Courts of Appeals, 78
CoLuM. L. REV. 1167, 1174 (1978) (footnotes omitted).

19

“Uniformly condemned” may be hyperbole, but not by
much. Directly or implicitly, judges, lawyers, and academic
commentators have indeed consistently attacked the basic
premises underlying the use by the circuit courts of summary
orders to decide appeals.

Unlike a baseball umpire, a judge must give reasons. This
is central to the tradition of western jurisprudence. The
outcome and consequences are not sufficient to tell whether a
decision is a good one; one must know the reasons given.
Individual justices and circuit court judges have with some
frequency noted the importance of reasoned opinions to
support appellate decisions. Justice Stevens wrote:

The judges {in former times] were guided by few
written laws, but developed a meaningful set of rules
by the process of case-by-case adjudication. Their
explanations of why they decided cases as they did
provided guideposts for future decisions and an
assurance to litigants that like cases were being
decided in a similar way. Many of us believe that
those statements of reasons provided a_ better
guarantee of justice than could possibly have been
described in a code written in sufficient detail to be fit
for Napoleon.

Conn. Board of Pardons v. Dumschat, 452 U.S. 458, 472
(1981) (Stevens, J., dissenting).

Judge Patricia Wald of the D.C. Circuit has reached the
same conclusion. “My own guiding principle is that virtually
every appellate decision requires some statement of reasons.
The discipline of writing even a few sentences or paragraphs
explaining the basis for the judgment insures a level of
thought and scrutiny by the court that a bare signal of
affirmance, dismissal, or reversal does not.” Patricia Wald,
The Problem with the Courts: Black-Robed Bureaucracy or

20

Collegiality Under Challenge, 42 MD. L. Rev. 766, 782
(1983) (emphasis added).

Judge Holloway of the Tenth Circuit has agreed:

[T]he basic purpose for stating reasons within an
opinion or order must never be forgotten — that the
decision must be able to withstand the scrutiny of
analysis, against the record evidence, as to soundness
under the Constitution and the statutory and
decisional law we must follow, as to its consistency
with our precedents. Our orders and judgments, like
our published opinions, should never be shielded from
searching examination.

In re Rules of the U.S. Ct. of Appeals for the Tenth Cir.,
Adopted Nov. 18, 1986, 955 F.2d 36, 38 (10th Cir. 1992)
(Holloway, C.J., dissenting).

The late Judge Rubin of the Fifth Circuit reached the
same conclusion:

Every judge should be required to give his reasons for
a decision, and those reasons should be sufficient to
explain the result to the litigants but also to enable
other litigants to comprehend its precedential value
and limits to its authority.

Alvin Rubin, Bureaucratization of the Federal Courts: The
Tension Between Justice and Efficiency, 55 NOTRE DAME L.
REV. 648, 655 (1980).

The Bar has been careful to distinguish between the use
of nonpublished opinions, as to which reasonable persons
may disagree, and the use of decisions containing no
statement of the circuit court’s rationale, which has been
consistently opposed. As the American Bar Association
Commission of Standards of Judicial Administration wrote:

’

21

Every decision should be supported, at minimum, by a
citation of the authority or statement of grounds upon
which it is based. When the lower court decision was
based on a written opinion that adequately expresses
the appellate court’s view of the law, the reviewing
court should incorporate that opinion or such portions
of it as are deemed pertinent, or, if it has been
published, affirm on the basis of that opinion.

ABA COMMISSION OF STANDARDS~ OF - JUDICIAL
ADMINISTRATION, STANDARDS RELATING TO APPELLATE
Courts 58 (1977). Another Commission declared:

We recommend that in every case there be some
record, however brief, and whatever the form, of the
reasoning which impelled the decision. Opinions can
be signed or unsigned, published or unpublished, but
in each case the litigants and their attorneys would be
apprised of the reasoning which underlies the
conclusion of the court.

COMMISSION ON REVISION OF THE FEDERAL COURT
APPELLATE SYSTEM, STRUCTURE AND INTERNAL
PROCEDURES: RECOMMENDATIONS FOR CHANGE 50 (1975).

Whether to permit the issuance of summary dispositions,
practiced by six judicial circuits, but prohibited by seven
others and condemned by leading members of the judiciary
and the Bar as unwise and contrary to American notions of
justice, is a question this Court should resolve.

22

IV. This Court Should Require the Courts of Appeals to
Articulate at Least Some Rationale or Explanation
for Dispositions of Appeals. Taken as a Matter of
Statutory Right.

To be clear, Petitioner here is not asking that this Court
hold that the Federal Circuit was required to have issued a
full-blown, comprehensive opinion. Nor is Petitioner asking
this Court to address the question of whether all decisions of
the federal courts of appeals are entitled to precedential
effect. Compare Anastasoff v. United States, 223 F.3d 898,
904 (8th Cir.), vacated as moot, 235 F.3d 1054 (8th Cir.
2000) (holding that the Constitution forbids the practice of
non-precedential opinions) with Hart v. Massanari, 266 F.3d
1155 (9th Cir. 2001) (holding that non-precedential
dispositions are constitutional). Instead, Petitioner only asks
that the Federal Circuit be required to articulate, however
briefly, the grounds of its decision sufficiently to allow the
parties to understand the basis of the decision and to allow
this Court to determine whether to exercise its certiorari
review over that decision. _

In this case, the Federal Circuit could have said as little
as, “We agree with the grounds upon which the trial court
entered summary judgment,” or “we agree with the United
States there is no genuine issue of material fact that the City
assented to the terms of the 1978 Release, and that Release
bars the City’s claims.” Either such rationale would have
explained to the parties the basis of the Federal Circuit’s
decision, and would allow this Court to determine whether to
review that decision. The basis of the Federal Circuit’s
decision, however, is impenetrable to the parties and this
Court. This case, therefore, calls for the exercise of this
Court’s supervisory authority to require courts of appeals to
at least briefly articulate the essential rationale of their
dispositions, whether precedential or otherwise, in appeals
taken as a matter of statutory right.

23
CONCLUSION

For the foregoing reasons, the petition for a writ of
certiorari should be granted.

Respectfully submitted,

M. Miller Baker
Counsel of Record
Michael S. Nadel
Jeffrey W. Mikoni
McDERMOTT WILL & EMERY LLP
600 Thirteenth Street, N.W.
Washington, D.C. 20005
(202) 756-8000

Attorneys for Petitioner
City of Gettysburg, South Dakota

August 14, 2006

App. !
UNITED STATES COURT OF APPEALS FOR THE
FEDERAL CIRCUIT

NOTICE OF ENTRY OF
JUDGMENT WITHOUT OPINION

JUDGMENT ENTERED: 03/16/06

The judgment of the court in your case was entered today
pursuant to Rule 36. This Court affirmed the judgment or
decision that was appealed. None of the relief sought in the
appeal was granted. No opinion accompanied the judgment.
The mandate will be issued in due course.

Information is also provided about petitions for rehearing
and suggestions for rehearing en banc. The questions and
answers are those frequently asked“ and answered by the
Clerk’s Office.

Costs are taxed against the Petitioner(s) in favor of the
Respondent(s) under Rule 39. The party entitled to costs is
provided a bill of costs form and an instruction sheet with
this notice.

The parties are encouraged to stipulate to the costs. A bill
of costs will be presumed correct in the absence of a timely
filed objection.

Costs are nayable to the party awarded its costs. If costs
are awarded . the government, they should be paid to the
Treasurer of the United States. Where costs are awarded
against the government, payment should be made to the
person(s) designated under the governing statutes, the court’s
orders, and the parties’ written settlement agreements. In
cases between private parties, payment should be made to
counsel for the party awarded costs or, if the party is not
represented by counsel, to the party pro se. Payment of costs

App. 2

should not be sent to the court. Costs should be paid
_ promptly.

Regarding exhibits and visual aids: Your attention is
directed to FRAP 34(g) which states that the clerk may
destroy or dispose of the exhibits if counsel does not reclaim
them within a reasonable time after the clerk gives notice to
remove them. (The clerk deems a reasonable time to be 15
days from the date the final mandate is issued.)

a

JAN HORBALY
Clerk

App. 3

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not
citable as precedent. It is a public record.

UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT

CITY OF GETTYSBURG, SOUTH DAKOTA,
Plaintiff-Appellant,

¥.

UNITED STATES,
Defendant-Appellee.

No. 05-5120
173 Fed. Appx. 827

March 16, 2006

Newman, Bryson, and Prost, Circuit Judges:
This CAUSE having been heard and considered, it is

ORDERED and ADJUDGED: AFFIRMED. See Fed. Cir. R.
36

Per Curiam.

App. 4

UNITED STATES COURT OF FEDERAL CLAIMS

CITY OF GETTYSBURG, SOUTH DAKOTA,
Plaintiff-Appellant,

Vv.

UNITED STATES,
Defendant-Appellee.

No. 00-773 L
64 Fed. Cl. 429

March 16, 2005

Lynn J. Bush, Judge.

This takings case is currently before the court on
defendant’s Motion To Dismiss Complaint For Failure To
State A Claim Or In The Alternative For Summary Judgment
And Memorandum In Support Thereof. For the reasons set
forth herein, defendant’s Motion For Summary Judgment is
hereby granted.

App. 5

BACKGROUND
I. Factual Background

Plaintiff, the City of Gettysburg, South Dakota, is an
incorporated municipality located in Potter County (City).
The City is approximately sixteen miles east of the Oahe
Reservoir located on the Missouri River (Reservoir). In the
1960’s, the City obtained its water from two wells located
within the City. However, in the mid-1960’s, the. City began
to look for alternative water sources because of the poor
quality of the wells and the high costs of maintaining them.
Consequently, in the early 1970’s, the City explored the
possibility of constructing a system to transport water from
the Reservoir to the City. The Reservoir was formed by the
creation of the Oahe Dam, as authorized by the Flood Control
Act of 1944, Pub. L. No. 534, 58 Stat. 887 (1944) (codified
as amended in scattered sections of 33 U.S.C. §§ 701-1, et
seq.), to serve the purpose of flood control and navigation.’

' The creation of the Oahe Dam and the Oahe Reservoir was a
result of severe floods that had devastated the lower Missouri
River Basin in 1943 and 1944. See Etsi Pipeline Project v.
Missouri, 484 U.S. 495,-500, 98 L. Ed. 2d 898, 108 S. Ct. 805
(1988). At the behest of Congress, the United States Army Corps
of Engineers (Corps) prepared a report that described a
comprehensive plan to develop the entire basin, known as the Pick
Plan for its author, a colonel in the Corps. /d. The Pick Plan pro-
posed the construction of twelve multi-purpose reservoirs, which
included the creation of the Oahe Reservoir. The Pick Plan
stressed flood control as the primary objective, but also stated that
the project would aid with irrigation, navigation, power, domestic
and sanitary purposes, wildlife, and recreation. /d. (citing H.R.
Doc. No. 475, 78th Cong., 2d Sess., at 29 (1944)). The report
estimated the gross storage capacity of the Oahe Reservoir at about
six million acre-feet of water. At the same time, the Interior De-
partment’s Bureau of Reclamation independently completed its
own plan to develop the basin, known as the Sloan Plan. /d. at

(continued...)

App. 6

According to plaintiff, the United States Army Corps of
Engineers (Corps) owns or controls the Reservoii up to the
Corps’ property line located at an elevation of approximately
1680 feet up the Reservoir slope.

Thus, in October 1972, an_ engineering firm
recommended that the City construct a water transmission
system from the Reservoir to the City and that the City begin
with the project as soon as possible because of problems
being experienced with the existing water system. The
proposed project included an intake structure exiting the
Reservoir to a pumphouse on the east bank of the Reservoir,
an underground transmission pipeline running east
approximately two miles from the pumphouse to a water
treatment facility, and an underground transmission pipeline
running approximately fourteen miles from the treatment
facility to the City. The intake structure, the pumphouse, and

500. Because Congress could not proceed with both plans at once,
a committee was composed with representatives from both the
Corps and the Bureau of Reclamation. /d. at 501. The committee
proposed a plan that incorporated aspects from both the Pick Plan
and the Sloan Plan. /d. The Oahe Reservoir was to be created by
construction of a high dam and to have a gross storage capacity of
nineteen million acre-feet of water. The stated purpose of Lake
Oahe was to allow “the irrigation of 750,000 acres of land in the
James River Basin, as well as to provide useful storage for flood
control, navigation, the development of hydroelectric power, and
other purposes.” /d. (citing S. Doc. No. 247, 78th Cong., 2d Sess.,
at 3 (1944)). Thus, Congress enacted the Flood Control Act of
1944. See Flood Control Act of 1944, Pub L. No. 534, §§ 4, 6, 58
Stat. 887, 889-90 (1944). The Act specifically states that the Oahe
Reservoir is under the control of the Secretary of the War. /d. The
title “Secretary of War” was changed to the title “Secretary of the
Army” in 1947. See National Security Act of 1947, Pub. L. No.
253, § 205(a), 61 Stat. 501 (1947).

App. 7

the first portion of the underground pipeline were to be
_ located on property owned or under the control of the Corps.

In December 1972, the City wrote to the Corps to apply
for an easement which would give the City a right-of-way
from the government to build and maintain the water
transport system. The easement was necessary because the
water transport system would be located, in part, on land
owned or under the control of the Corps. The Corps
responded by detailing the information it needed in order to
consider an application for an easement, and the City
complied by furnishing the data requested.

In an internal memorandum dated May 11, 1973, the
Corps recommended that the City be granted the requested
right-of-entry on the designated Corps property, pending final
consideration of the City’s request for an easement.
Subsequently, on July 25, 1973, the Corps forwarded to the
City proposed easement No. DACW45-2-74-6007 granting
the City, for a fifty-year term, a right-of-access across the
Corps’ land for the withdrawal of water from the Reservoir.

The Corps also provided the City with a list of
requirements for obtaining a permit under Section 10 of the
Rivers and Harbors Appropriation Act of 1899, 33 U.S.C.
§ 403. As of August 28, 1973, the City had requested a
Section 10 permit, which it received on November 12, 1973
(Permit). The Permit was officially signed by the Corps on
November 12, 1973 and by Mayor Klein, on behalf of the
City, on November 14, 1973. Distinct from the requested
easement, the Permit allowed the City to maintain the water
intake structure, lay an intake line, and construct a
pumphouse in the Reservoir. The Permit specifically did
“not convey any property rights either in real estate or
material” and contained a release from liability clause stating
that “the United States shall in no way be liable for any
damage to any structure or work authorized herein which

App. 8

may be caused by or result from future operations undertaken
by the Government in the public interest.” Def.’s Ex. 10. at
35-36.

Accordingly, in 1973, the City proceeded with
construction of the water transmission system. The water
supply system was constructed in or around 1973 through
1974 and completed in mid-1975. The water supply system
included a water intake structure located on the floor of the
Reservoir which carried water to the pumphouse on the east
bank of the Reservoir in an inlet called Whitlock’s Bay. An
underground transmission line then ran from the pumphouse
2.5 miles east to a water treatment plant. Following that, an
underground transmission pumpline ran 13.5 miles from the
water treatment plant to the City. According to the
complaint, the water supply system was the City’s sole
source of water. As stated previously, the intake siructure,
the pumphouse, and the first portion of the underground
pipeline were located on property owned or controlled by the
Corps. The total cost for the project was $ 864,000.

On September 25, 1975, after construction_of the project
had been completed, the City advised the Corps that the
easement requested in 1972 had not yet been issued. On that
date, the City wrote to the Corps requesting that a permanent
easement be issued. On November 18, 1975, the Corps
responded with a statement that the City’s request for a
permanent easement was still being processed and had not
yet been approved. A year and a half later, on June 2, 1977,
the Corps sent the City another proposed easement with
purportedly different terms than the previous one. On
October 18, 1977, the Corps sent the City yet another
proposed easement to replace the one sent in June of that
year.

A fourth proposed easement was then sent to the City on
January 24,.1978. Finally, on March 7, 1978, the Corps

App. 9

formally issued Easement No. DACW45-2-78-6002
(Easement) granting the City a right-of-way to construct,
Operate and maintain the pipeline and pumping station.
Defendant acknowledges. that the drafting of the easement
was in progress for several years. Defendant states that it

does not know why the Easement was not finalized until
1978.

Paragraph 7 of the Easement contains the following
clause:

The United States shall not be responsible for
damages to property or injuries to persons which may
arise from or be incident to the use and occupation of
the said premises, nor for damages to the property of
the grantee, nor for damages to the property or injuries
to the person of the grantee’s officers, agents,
servants, or employees, or others who may be on said
premises at their invitation or the :iivitation of any one
of them, arising from or incident to government
activities, and the grantee shali hold the United States
harmless from any and all such claims.

Def.’s Ex. 26 at 64.

On March 7, 1978 the Corps also issued License No.
DACW45-3-78-6001 (License), which gave the City right-of-
use of a nearby strip of land for a period of two years as a
temporary work site to construct the water intake structure
and pumping station. The License was scheduled to expire
on March 6, 1980. The granting of the License was the
natural corollary to the Easement and the Permit. Whereas
the Easement allowed the structures to remain on
governmentally controlled land for a period of fifty years,
and the Permit authorized those structures, to the extent
applicable, to reside in the navigable waters of the United
States, the License allowed the City to have access to

Ra SES SRE LS OE EGS SS a a ae

App. 10

government land as a work site for two years in order to
construct the water transmission system. Paragraph 4 of the
License contained release language similar to that in the
Easement.’

The City asserts that by September 1978 it still had not
received copies of the Easement or the License and inquired
about both;documents at that time. Defendant disagrees with
this contention and avers that the City received a copy of the
Easement ‘near the time of execution. Regardless, both
parties agree that the Corps finally forwarded copies of the
License and Easement on October 16, 1978 to plaintiff, years
after construction of the water system was completed.

Despite receiving the documents, the City claims that the
terms contained in the Easement and the License were never
accepted by the City, as demonstrated by the fact that the
neither the Easement nor the License were ever signed by the
City. Plaintiff contends that because the City did not sign the
Easement or the License, it did not agree to the specific terms

2 The release clause in the License states:

That the United States shall not be responsible for damages
to property or injuries to persons which may arise from or
be incident to the exercise of the privileges herein granted,
or for damages to the property of the licensee, or for
injuries to the person of the licensee, or for damages to the
property or injuries to the person of the licensee’s officers,
agents, servants, or employees, or others who may be on

. said premises at their invitation or the invitation of any one
of them, arising from or incident to governmental activities
on the daid-premises, and the licensee shall hold the United
States harmless from any and all such claims.

Def.’s-Ex. 27.

App. I1

contained therein, most notably, the release from liability
clauses at issue in this lawsuit.

Defendant responds that as part of obtaining the
Easement, Mayor Klein executed an agreement assuring the
City’s compliance with the Department of Defense’s
directive under Title VI of the Civil Rights Act of 1964
(Assurance). Defendant contends that the Assurance, as
signed by the mayor, constitutes acceptance of the terms of
the Easement. The City contends that execution of the
agreement was not necessary to obtain the Easement.

With respect to the License, plaintiff argues that because
the City never signed the License, it did not assent to the
release from liability clause contained therein. Defendant
opposes this contention, averring that the License was indeed
signed by the City’s mayor. Defendant argues that the
mayor’s typed signature was a valid signature and constitutes
acceptance of the terms of the License.

The City operated the water transmission system without
any significant problems until 1995. However, beginning
around the summer of 1995, landslides developed on the
Reservoir’s slope where the intake structure, pumphouse and
underground transmission pipelines were located. As a result
of these landslides, breaks began to develop in the
underground water pipeline running east from the pumphouse
up the slope. According to the affidavit of Mr. Elmer
Nitzschke, city attorney for the City of Gettysburg,
approximately eight breaks occurred in pipelines located on
Corps’ property, while the remaining fifteen breaks occurred
on pipelines located on non-governmentally owned property.
The landslides eventually caused damage to the pump itself
Starting in the summer of 1995. For two years, the City
struggled with repairing numerous breaks in the pipeline. By
late 1997, the damage became so severe that the pumphouse

App. 12

and water transmission pipeline were irreparable and the City
was forced to abandon the water supply system.

Plaintiff contends that the landslides on the slope of the
Reservoir were caused by the Corps’ construction,
management and operation of the Reservoir. Plaintiff alleges
that the damage to the City’s water supply system constitutes
a taking of the City’s property without just compensation and
in violation of due process under the Fifth Amendment of the
United States Constitution. Plaintiff claims that it has”
suffered damages in an amount exceeding $ 1,000,000.

Defendant’s main defense, as asserted in its motion, is
that plaintiffs takings claim fails because the release
language contained in the Easement, License, and Permit
precludes suit. Defendant contends that this is the case
because the water supply system in question was located on
land owned by the government to which the License,
Easement and Permit applied. Defendant also contends that
damages should be limited in that regard because, even prior
to the City’s abandonment of the water system in 1997, the
City had been investigating switching to an alternative source
of water. Defendant finally asserts that the government
shouldered much of the cost for the City to switch to an
alternative water source.

Il. Procedural History

Plaintiff filed its complaint against defendant on
December 20, 2000. On September 6, 2002, defendant filed
its Motion to Dismiss Complaint For Failure To State A
Claim Or In The Alternative For Summary Judgment. With
it, defendant filed an appendix of exhibjts but failed to
include its proposed findings of uncontroverted fact pursuant
to Rule 56(h) of the United States Court of Federal Claims
(RCFC). On October 4, 2002, plaintiff filed its response to
defendant’s motion, also without submitting any proposed

App. 13

findings of fact. To rectify the error, on October 10, 2002,
the court ordered defendant to file its proposed findings of
fact by November 12, 2002. City of Gettysburg v. United
States, No. 00-773 L, slip op. at 2 (Oct. 10, 2002). The court
ordered the Clerk’s office to return plaintiff's response to
plaintiff and for plaintiff to resubmit its response by
December 13, 2002. On that date, plaintiff filed its Brief in
Opposition to Defendant’s Motion, Plaintiff's Statement Of
Uncontroverted Facts, and Plaintiffs Response To
Defendant’s Proposed Findings Of Uncontroverted Fact In
Opposition to Defendant’s Motion For Summary Judgment.
On January 28, 2003, defendant filed its Reply On Its Motion
To Dismiss Or In The Alternative for Summary Judgment.

On October 15, 2003, this court ordered the parties to file
supplemental briefs regarding various issues and questions
the court had propounded to the parties. In particular, the
court required the parties to discuss whether the conduct
herein constituted a tort over which this court lacked
jurisdiction. Defendant filed its supplemental brief on
December 17, 2003 stating that the government is not
asserting as one of its defenses that this court lacks
jurisdiction over plaintiff's action because the claim sounds
in tort.’ Again on December 22, 2004, the court ordered that
additional supplemental briefs be filed on specified issues
propounded by the court. Now that the briefing is complete,
the court renders this opinion.

* Plaintiff filed its supplemental brief on January 16, 2004.
The parties were also given time to file respective responsive
briefs.

DISCUSSION
|. Standard of Review

Defendant has moved this court to dismiss plaintiff's
claim under RCFC 12(b)(6) for failure to state a claim upon
which relief can be granted. RCFC 12(b) provides that “if on
a motion ... to dismiss for failure of the pleading to state a
claim upon which relief can be granted, matters outside the
pleading are presented to and not excluded by the court, the
motion shall be treated as one for summary judgment and
disposed of as provided in RCFC 56.” RCFC 12(b). Both
parties have referred to extra-pleading materials in support of
their respective positions. Plaintiff submitted, and references
in its brief, the affidavit of Elmer Nitzschke, city attorney for
the City of Gettysburg, in its opposition. Defendant has”
submitted thirty-two exhibits in support of its motion. Once
the court decides to accept extra-pleading material, it must
convert the 12(b)(6) motion into a Rule 56 motion. Schultz v.
United States, 5 Cl. Ct. 412, 416 (1984) (because plaintiff
presented matters outside the pleadings, court was required to
treat motion for judgment on the pleadings as a motion for
summary judgment); see also De Brousse v. United States, 28
Fed. Cl. 187, 188 (1993) (treating motion to dismiss as
motion for summary judgment because extra-pleadings
matters were not excluded by the court); Keating v. BBDO
International, Inc., 438 F. Supp. 676, 679-80 (S.D.N.Y.
1977) (under the Federal Rules of Civil Procedure).

RCFC 12(b) provides that when an RCFC 12(b)(6)
motion is converted into an RCFC 56 motion, the parties
“shall be given a reasonable opportunity to present all
material made pertinent to such a motion by RCFC 56.”
RCFC 12(b); see also Thoen v. United States, 765 F.2d 1110,
1114 (Fed. Cir. 1985) (“Cases from this court and. other
courts underscore the importance of the opportunity for the
opposing party to counter a summary judgment motion.”). In

{

XX EOE EEE EE EOE EEE EEE EE en

App. 15

this instance, because defendant moved in the alternative for
summary judgment, plaintiff has had ample time to submit
materials and arguments against summary judgment. This is
evidenced most clearly by the affidavit and materials
submitted by plaintiff with its opposition brief. Plaintiff,
itself, agrees that defendant’s motion should be reviewed
under a RCFC 56 standard.

Accordingly, because the court does not exclude the
extra-pleading materials submitted by the parties and because
plaintiff has had ample opportunity to present all materials
and arguments in support of its position against defendant’s
motion for summary judgment, defendant’s motion to dismiss
will be treated as a motion for summary judgment under
RCFC 56. See RCFC 12(b).

The moving party is entitled to summary judgment “if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of
law.” RCFC 56(c). Defendant, as the moving party, has the
burden of establishing the absence of disputed genuine issues
of material fact and its entitlement to judgment as a matter of
law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L.
Ed. 2d 265, 106 S. Ct. 2548 (1986). A genuine issue of
material fact is one that would change the outcome of the
litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). In the
capacity of opposing defendant’s motion, plaintiff has the
burden of providing sufficient evidence to show that a
genuine issue of material fact indeed exists. Celotex, 477
U.S. at 322. Any evidence presented by the nonmovant is to
be believed and all justifiable inferences are to be drawn in
its favor. Anderson, 477 U.S. at 255. Summary judgment
pursuant to RCFC 56 properly can intercede and prevent trial
if the movant ‘can demonstrate that trial would be useless in

App. 16

that more evidence than is already available in connection
with its motion could not reasonably be expected to change
the result. Pure Gold, Inc. v. Syntex (U.S.A.), Inc., 739 F.2d
624, 626 (Fed. Cir. 1984).

Defendant requests that this court rule in favor of its
motion for summary judgment on the basis that plaintiff's
theories ofirelief, measured against all evidentiary materials
submitted by the parties, do not state a claim upon which
relief can be can granted. Thus, the inquiry on this motion
for summary judgment is whether, affording plaintiff the
presumptively favorable view of the facts to which it is
entitled, defendant has discharged its burden of showing that

it is entitled to judgment as a matter of law.
5

Ii. Analysis
A. Preliminary Inquiries

Having determined that the RCFC 56 summary judgment
standard will apply to the instant motion, the court will first
review preliminary inquiries the parties have presented in
their submissions. In particular, the court must address (1)
whether plaintiff has a proper cognizable property interest
suitable for raising a takings claim in this court and (2)
whether defendant’s laches defense bars plaintiff's claim.

1. Cognizable Property Interest

The government argues that the court lacks jurisdiction
over this matter because plaintiff does not have a
compensable property interest sufficient to assert a Fifth
Amendment takings claim. To determine whether plaintiff
has a sufficiently cognizable property interest to support its
takings claim, it is useful for the court to briefly discuss what
a takings claim entails.

App. 17

Plaintiff alleges that the “damage to the_City’s water
supply system constitutes a taking without just compensation
and due process of law under the Fifth Amendment of the
United States Constitution.” Compl. P 5. When a
municipality condemns a property, but fails to conduct an
eminent domain proceeding before the taking of the property,
the action is one for “inverse condemnation.” See Agins v.
City of Tiburon, 447 U.S. 255, 258 n.2, 65 L. Ed. 2d 106,
100 S. Ct. 2138 (1980) (“Inverse condemnation should be
distinguished from eminent domain. Eminent domain refers
to a legal proceeding in which a government asserts its
authority to condemn property. Inverse condemnation is ‘a
shorthand description of the manner in which a landowner
recovers just compensation for a taking of his property when
condemnation proceedings have inot been instituted.””) (citing \
United States v. Clarke, 445 U.S. 253, 257, 63 L. Ed. 2d 373,
100 S. Ct. 1127 (1980)); see also Kim C. Pflueger, Takings
Law - Is Inverse Condemnation an Appropriate Remedy for
Due Process Violations?, 57 Wash. L. Rev. 551, 572 (1982)
(stating that a property owner is entitled to institute a suit for
inverse condemnation to compel an ex post facto recovery of
just compensation) (citing Van Alstyne, TZaking Or
Damaging By Police Power: The Search For Inverse
Condemnation Criteria, 44 S. Cal. L. Rev. 1 (1970); Note,
Inverse Condemnation: Its Availability in Challenging the
Validity of a Zoning Ordinance, 26 Stan. L. Rev. 1439
(1974)). Neither party in this action alleges that any formal
condemnation proceeding in this matter has been instituted.

In view of the fact that this matter is an inverse
condemnation action, this court must next address the
threshold question as to whether there is subject matter

* To “condemn” property in this sense means to determine and
declare property to be assigned to public use. Black’s Law
Dictionary 310 (8th ed. 2004).

App. 18

jurisdiction to entertain this case. The court entertains the
jurisdictional questions first and foremost, since jurisdiction
is a prerequisite which must be met prior to any substantive
issues presented by summary judgment. See Lockheed
Martin Corp. v. United States, 50 Fed. Cl. 550, 553 (2001),
aff'd, 48 Fed. Appx. 752, 2002 WL 31164088 (Fed. Cir.
Sept. 30, 2002) (unpublished).

A jurisdictional requirement to bring a takings claim in
this court is that the government’s action be authorized. See
Tabb Lakes, Ltd. v. United States, 10 F.3d 796, 802 (Fed. Cir.
1993) (citations omitted); Sun Oil Co. v. United States, 572
F.2d 786, 819, 215 Ct. Cl. 716 (Ct. Cl. 1978). The United
States possesses the requisite authority to improve navigable
waters of the United States in the interest of improving
navigation. 33 U.S.C. § 1, ef seq.; see also United States v.
Kansas City Ins. Co., 339 U.S. 799, 804, 94 L. Ed. 1277, 70
S. Ct. 885, 116 Ct. Cl. 897 (1950). The Army Corps of
Engineers has been delegated with the responsibility of care
and guardianship of the navigable waters of the United
States. 33 U.S.C. § 1, et seqg.; 33 C.F.R. § 322.5 (2004).
Both parties in this case agree that the Oahe Reservoir
constitutes navigable waters of the United States.” Defendant

> In Alameda Gateway, Ltd. v. United States, this court recited
the inquiry to be used to determine if a body of water constitutes
“navigable waters of the United States” in the case of navigable
servitudes. 45 Fed. Cl. 757, 764 (1984). The court identified a
distinction between Congress’ ability to regulate navigable waters
of the United States through the Rivers and Harbors Appropriation
Act and the government’s application of a navigable servitude in
the case of a public right-of-access to a water body. /d. (citing
Kaiser Aetna v. United States, 444 U.S. 164, 172, 62 L. Ed. 2d
332, 100 S. Ct. 383 (1979)). Navigational servitude, which derives
from the Constitution’s Commerce Clause, gives the government a
dominant servitude or power to regulate and control the waters of
the United States in the interest of commerce. See United States v
: (continued...)

App. 19

asserts that water levels in the Reservoir must, at times, be
raised or lowered to assist in the production.of hydroelectric
power, flood control, downstream navigation, irrigation, etc.
This operation is clearly authorized under the power
conferred by Congress to the Corps. See Engineering and
Design; Water Control Management, 47 Fed. Reg. 44,543
(Oct. 8, 1982) (codified at 33 C.F.R. pt. 222) (providing
guidance to the Corps of Engineers in performing water
control management activities under the Flood Control Act).
Accordingly, even if the parties were challenging the Corps’
authorization to operate the Oahe Dam, the court, sua sponte,
finds that the Corps’ activity in this matter was authorized.

In addition to demonstrating that the government activity
was authorized, plaintiff must also show that it has a
cognizable property interest. See, e.g., Wyatt v. United
States, 271 F.3d 1090, 1097 (Fed. Cir. 2001) (cognizable
property interest is a requirement for asserting an action for a
compensable taking under the Fifth Amendment), cert.
denied, 535 U.S. 1077, 152 L. Ed. 2d 1021, 122 S. Ct. 1960
(2002). The parties have differing contentions as to whether
plaintiff possesses the requisite cognizable property interest.
The City asserts that it has a cognizable property interest in
its damaged pipelines and related water transmission system
equipment by virtue of its ownership of that property.
Plaintiff asserts that “it is undisputed that the City owned,
installed and maintained the pipe ine.” Pl.’s Supp. Brief at 7.

Rands, 389 U.S. 121, 122-23, 19 L. Ed. 2d 329, 88 S. Ct. 265
(1967). The court in Alameda Gateway, citing Owen v. United
States, 851 F.2d 1404, 1408-09 (Fed. Cir. 1988), went onto
Observe that the federal navigational servitude defines the
boundaries within which the government may supercede private

ownership interests in order to improve navigation. Alameda
Gateway, 45 Fed. Cl. at 763.

App. 20

Defendant contests the City’s assertion that it has a
cognizable property interest in the water transmission system
structures. Although the government agrees that the City’s
ownership of the water pipelines and related structures
generally constitute personal property and is a property
interest, defendant argues that the Section 10 Permit granted
to the City merely creates a license to build and maintain
permitted structures in the Reservoir and does not convey any
property right to the City, based on the fact that the Permit
itself states that the instrument does not convey any property
rights in real estate or material. Defendant further argues that
even if plaintiff were to have a property interest in the
physical water transmission system, such system has “no
value” absent a connection to a water source, in which
plaintiff has no proprietary interest since a party cannot have

a property interest in the navigable waters of the United
States.°

Plaintiff counters that even if the City does not have a
property interest in the work authorized by the Permit (the
water intake structure, the pumphouse and a portion of the
intake line), the City at least has a property interest in the
underground pipeline running past the Reservoir towards the
City located on nongovernmentally controlled or owned
property since that work was not under the scope of the
Permit. Plaintiff notes that the City was not required to
obtain any approval under the Permit for construction of the
transmission pipeline running past the pumphouse eastward

° Plaintiff counterargues that even if the Permit itself may not
have granted plaintiff any property rights, the Easement did. It
seems counterintuitive that the City would allege that it has a valid,
cognizable property interest by virtue of the Easement, while at the
same time, arguing that the City never accepted the terms of the
Easement in the context of rejecting the release language contained
therein. The court addresses this argument in Sec.I1.B.1.

. App. 21

beyond the Reservoir’s slope because that portion of the
. waterlines. was. not. located in navigable waters nor on
government property. Furthermore; the damage to that
portion of the pipeline alone, plaintiff argues, rendered the
remaining structures, including the pumphouse, water
treatment facility and the intake structure, completely useless.

Section 10 of the Rivers and Harbors Appropriation Act

of 1899 requires a permit to place structures in navigable

waters of the United States (colloquially referred to as a

“Section 10” permit). 33 U.S.C. § 403. This statute prohibits

the obstruction of navigable waters of the United States

except when initiated by a plan recommended by the Corps

of Engineers and approved by the Secretary of the Army. /d.;

see also Deltona Corp. v. United States, 657 F.2d 1184,

- 1185, 228 Ct. Cl. 476 (Ct. Cl. 1981), cert. denied, 455 U.S.

| 1017, 72 L. Ed. 2d 135, 102 S. Ct. 1712 (1982). The

Secretary of the Army has delegated to the Corps the

authority to issue or deny Section 10 permits. /d. at 1186
(citing 33 C.F.R. § 322.5 (1980)).

In this instance, the Permit, along with the Easement and
License, authorized the City to construct and maintain the
water intake structure, the pumphouse, and the water intake
line in the Reservoir. Thus, the issue to be determined is,
whether, in light of or despite the license to maintain
structures in navigable waters, as afforded by the Permit,
plaintiff has a cognizable property interest in the water
transmission system. If so, does the property interest further
create a distinction between those structures that reside in
navigable waters, versus those structures merely connected to
structures residing in navigable waters.

The Permit states that it “does not convey any property
rights either in real estate or material ....” Def.’s Ex. 10 at
35. Defendant argues that this language precludes plaintiff's
claim, especially in light of United States v. 5.96 Acres of

App. 22

Land, 593 F.2d 884, 888 (9th Cir. 1979), upon which
defendant relies. The court first notes that though it is true
that the Permit grants no property interest in either real estate
or material, that does not mean that the City has no property
interest at all. That language simply means that no additional
property interests are conveyed by virtue of the issuance of
the Permit.

Second, the court finds 5.96 Acre: »f Land inapplicable to
this issue.. There, the State of Washington leased aquatic
lands located immediately upstream from the Benneville
Dam to the Knappton Towboat Company. 593 F.2d at 884.
Knappton built various pilings, dolphins, and dikes on the
leased lands for timber storage. At the same time, the
government was completing the Second Powerhouse Project
which would raise the water level behind the dam, thereby
weakening the structures Knappton had already built. To
preserve them, Knappton needed to rebuild the structures at
considerable expense. Knappton argued that this constituted
a compensable taking under the Fifth Amendment by the
federal government.’

Knappton, like the City, had received a Section 10 permit
under the Rivers and Harbors Appropriation Act, which
expressly forbids the construction of any structure in
navigable waters unless authorized by the Secretary of the
Army. See 33 U.S.C. § 403. In 5.96 Acres of Land, the
government argued that the structures built by Knappton
were authorize” by permits that were revocable at will and
therefore, Knappton had no property interest cognizable
under thie Fifth Amendment.

’ The State of Washington, also a plaintiff in the suit, claimed a
loss from the anticipated decrease in rental value of the aquatic
lands due to the operation of the dam.

App. 23

Knappton tried, albeit too late, to assert that no permit
had been obtained. The court noted that in prior pleadings,
Knappton never denied obtaining the permit and implicitly
admitted that permits had been obtained. Moreover, the court
noted that if no permit had ever been obtained, the structures
would have been unlawful and their removal would not have
required compensation. 5.96 Acres of Land, 593 F.2d at 888.

Nevertheless, focusing on the fact that the permits had
indeed been issued, the United States Court of Appeals for
the Ninth Circuit (Ninth Circuit) held that the Section 10
permit granted Knappton a mere license to build and
maintain its structures. /d. The court held that, as such, the
permit was revocable at will by the government. /d. The
court also noted that the permit language indicated that the
government could require removal of the structures as well.
Id. Although in 5.96 Acres of Land the permits were not
actually revoked, the court found that the net effect of the
permit language and the nature of the Section 10 permit in
general lent to finding that Knappton had no cognizable
property interest in his structures with respect to the
government’s ability to revoke the permit or have the
structures removed. /d.

The Section 10 Permit at issue here contains a revocation
clause similar to that found in 5.96 Acres of Land. This,
arguably, would lend to a finding that because the Permit is
revocable at will by the government, the City has no
cognizable property interest. This notion has been iterated
with respect to licenses and permits in general. “Licenses or
permits are traditionally treated as not protected by the
Takings Clause because they are created by the government
and can easily be cancelled by the government and normally
are not transferable.” American Pelagic Fishing Co. v.
United States, 49 Fed. Cl. 36, 46 (2001), rev'd and remanded
on other grounds, 379 F.3d 1363 (Fed. Cir. 2004). This is
because permits and licenses lack one or more indicia of

App. 24

property ownership. Arctic King Fisheries, Inc. v. United
States, 59 Fed. Cl. 360, 371 (2004).

Yet this court does not agree with the holding in 5.96
Acres of Land and finds that a property interest in plaintiff's
water transmission system exists. In Conti v. United States,
the Federal Circuit found that no property interest existed in
plaintiff's fishing permit, but yet a property interest did exist
in plaintiff's fishing vessel and nets when a regulation
restricted plaintiff's fishing activities by limiting plaintiff's
use of drift gillnets. 291 F.3d 1334, 1343 (Fed. Cir. 2002).
The Federal Circuit found that plaintiff's mere license to fish
did not qualify as a protectable property interest given that
the fishing permit did not confer rights generally found in
one’s bundle of property rights and because the fishing
permit was suspendable and revocable. /d. at 1341-42.
However, plaintiff's physical boat and gear did constitute a
property interest sufficient to assert a takings claim. /d. at
1343. The same distinction can be drawn in the case at bar.
Although the City may not have a property interest in the
permit itself, it does have a property interest in its damaged
pipeline. The court disagrees with 5.96 Acres of Land’s
holding that a Section 10 permit leaves a plaintiff devoid of
any property interest when physical structures are damaged.
The Ninth Circuit fails to acknowledge those property
interests which exist independent of a given perinit or license.
In this instance, the City is not claiming a taking of any
interest conveyed by the Permit, such as the right to occupy
navigable waters or have access to government-owned land
or an interference with water or lease rights. The claim here,
rather, arises out of the frequent breaks in the underground
pipeline caused by landsliding on the slopes of the Reservoir.
The City seeks recovery for the physical loss of the damaged
pipeline and equipment from soil movement allegedly caused
by the government’s operation of the Reservoir. The City
has specifically limited its claim to the taking of the physical

App. 25

pipelines and not to a taking of water rights or a right to
maintain structures in navigable waters.

Thus, in examining this case in light of 5.96 Acres of
Land, the court agrees with the City that it has a cognizable
property interest in the entire water transmission system for
the purpose of asserting a Fifth Amendment takings claim.
This includes the structures located in the Reservoir (such as
the water intake structure, transmission line and pumphouse)
and, also, the pipelines leading from the water treatment
facility towards the City. There is no disagreement between
the parties that just as having an interest in real property
creates a cognizable property interest for the purposes of
asserting a cause of action for inverse condemnation, so does
one’s interest in tangible or personal property. Tangible
property may be the subject of a takings claim. Andrus v.
Allard, 444 U.S. 51, 65, 62 L. Ed. 2d 210, 100 S. Ct. 318
(1979); Maritrans, Inc. v. United States, 342 F.3d 1344, 1352
(Fed. Cir. 2003) (finding a property interest sufficient for a
takings claim in barges); King v. United States, 427 E.2d 767,
769-70, 192 Ct. Cl. 548 (Ct. Cl. 1970) (interference with
crops due to overflow of river constitutes a sufficient
property interest to assert a fifth amendment takings claim).

In further support of the City’s claim of a cognizable
property interest in this case, the court also examines the
holding in Maritrans. There, the government argued that
since Maritrans utilized its single hull barges in navigable
waters of the United States, the property interest Maritrans
asserted in the use of its vessels on such waterways could not
give rise to a protected property interest since the waters of
the United States are public property. 342 F.3d at 1352-53.
Similarly here, the government argues that because the water
transmission system structures are maintained in navigable
waters of the United States, or are connected to structures
maintained in navigable waters of the United States, that the

App. 26

City has no cognizable interest. However, the Maritrans
court found that:

Those facts do not somehow diminish or

eliminate the basic property interest that

Maritrans has in its single hull tank barges.

Maritrans has various rights in its barges that

qualify them as property for Fifth Amendment

protection. For example, Maritrans may sell or

otherwise dispose of the barges; it may possess
and transport them; and it may alter them by

adding a second hull.

Id. at 1353 (citing Andrus, 444 U.S. at 66).

Just as Maritrans had a property interest in its barges, the
City has a property interest in the water transmission system
and pipelines that it paid for and utilized. Such is the case
since the City could have abandoned these lines (which it
ultimately did), or could have theoretically sold or otherwise
disposed of the pipelines. The right to use and dispose of
property is fundamental in the bundle of property rights. In
this instance, no other town or city was utilizing the water
transmission system and no other entity had paid for its
construction. See Andrus, 444 U.S. at 66 (suggesting that the
right to possess, transport, donate, devise and sell are all
“sticks” in the bundle of property rights). It is clear from the
facts presented that the City has a cognizable property
interest in the water transmission system.

Defendant, lastly, raises an argument in its Supplemental
Brief that plaintiff has no cognizable property interest due to
the existence of the government’s navigational servitude. In
particular, defendant asserts that plaintiff cannot have
compensable property rights in portions of the water system
located below the mean high-water mark of the Reservoir.

App. 27

This argument necessitates an explanation of what the
government’s navigational servitude entails.

All navigable waters are under the contro] of the United
States for the purpose of regulating and improving
navigation. Gilman v. City of Philadelphia, 70 U.S. (3 Wall.)
713, 724, 18 L. Ed. 96 (1865); see also Gibson v. United
States, 166 U.S. 269, 272-73, 41 L. Ed. 996, 17 S. Ct. 578, 32
Ct. Cl. 621 (1897). Although title to the shore and
submerged soil of navigable waters belongs to. the various
states and individual owners, such title is always subject to
the government’s navigational servitude. Gibson, 166 U.S. at
272. This means that the United States has the power to
invade property rights in land within the bed of a stream
(which includes all lands below the ordinary high-water
mark), without paying compensation, when the purpose of
the invasion is to aid in the navigability of the stream. Tri-
State Materials Corp. v. United States, 550 F.2d 1, 5, 213 Ct.
Cl. 1 (Ct. Cl. 1977) (citation omitted); Coastal Petroleum Co.
v. United States, 524 F.2d 1206, 1209, 207 Ct. Cl. 701 (Ct.
Cl. 1975), cert. denied, 449 U.S. 1011, 66 L. Ed. 2d 469, 101
S. Ct. 567 (1980). The bed of a navigable stream includes
the adjacent banks up to the ordinary high-water mark. Tri-
State Materials, 550 F.2d at 6. Land within the bed is always
subject to (or burdened with) the potential exercise of
navigational servitude. /d. An owner of such land may not
claim compensation when the government takes the land
pursuant to aiding navigability of the stream. /d. (citing
United States v. Chicago, Milwaukee, St. Paul & Pacific
R.R., 312 U.S. 592, 596, 85 L. Ed. 1064, 61 S. Ct. 772
(1941)).

The court does not view the operation of navigational
servitude as being controlling in this case. First, not all of the
property at issue in this matter is part of the bed of a
navigable stream. The majority of the damage claimed by
the City is to pipelines not located on the Reservoir bed. PIl.’s

App. 28

Brief in Opp. to Def.’s Mot. to Dismiss at 7; Def.’s Reply to
P|.’s Supp. Brief at 3 (“Indeed the Reservoir itself is located a
considerable distance away from, and much lower in
elevation than, the area where the majority of pipeline breaks
occurred.””). See Owen v. United States, 851 F.2d 1404, 1411
(Fed. Cir. 1988) (holding that erosion caused by underground
seepage occurring below the ordinary high-water mark but
outside the stream bed constituted a compensable
government taking).

Second, the City is not claiming damage due to a loss of
rights in the water. Normally the navigational servitude
doctrine is invoked by the government when the government
needs to alter the direction of water flow from its natural
course. For example in United States v. Twin City Power
Co., 350 U.S. 222, 100 L. Ed. 240, 76 S. Ct. 259 (1956),
plaintiff argued that the government’s action of altering the
flow of a river caused its hydroelectric operations to be
impeded since the operations were dependent upon
maintaining the status quo of the river. The court held that
the flow of the river was subject to navigational servitude and
that the owners of “fast lands” (land beyond the bed of a
navigable stream) could not be awarded compensation for
their interest in that flow if the government caused the flow
of the river to be altered. /d. at 227. In United States v.
Virginia Electric & Power Co., 365 U.S. 624, 5 L. Ed. 2d
838, 81 S. Ct. 784 (1961), which also involved water power
operations, damage to plaintiff's property included uses of
the property not associated with the flow of the river. These
non-riparian damages were held compensable, while the
riparian uses were held noncompensable due to the
application of the government’s navigational servitude. /d. at
629-31.

In this instance, the court does not see how the value
claimed to have been taken derives from the City’s access or
use of the Reservoir itself. The City is not claiming a loss of

App. 29

access to water or that the raising and lowering of water
levels resulted in a direct interference with an operation
relying chiefly on water power. The takings claim is solely
premised on physical damage done to the water transmission
system from the landslides caused by the government’s
operation of the Reservoir.® Simply put, this claim does not
relate to a direct reliance on the flow of a navigational stream
or a riparian use of a navigable stream (such as fishing,
irrigation, or use in a chemical plant process) to which the
government’s navigational servitud: would- preclude
recovery. See Tri-State Materials, 550 F.2d at 8.’

* For the purposes of this decision, the court accepts the City’s
contention that defendant’s actions resulted in the claimed damage,
although the court recognizes that there is a dispute of material fact
as to whether the government’s operation of the Reservoir was
actually the source of damage to the City’s water transmission
system. As explained further in this opinion, the court does not
need to address, on the merits, defendant’s alleged liability with
respect to the damage sustained by plaintiff.

” The court cannot ignofe the holding in Coastal Petroleum
with respect to the application of navigational servitude in flood
control situations. 524 F.2d at 1210. Plaintiff therein argued that
the right of the United States to take or use submerged property is
limited to actions in aid of navigation, and that the work at issue
there was related to flood control as opposed to aiding navigation.
The Coastal Petroleum court identified a number of cases where
this court, and its predecessors, have upheld the application of
navigational servitude in instances of flood control projects. /d.
The court opined that a failure to execute proper flood control
mechanisms can have a disastrous effect on navigation and many
statutes in which flood control projects are authorized list
navigation as a benefit served by such project. Jd. However
Coastal Petroleum involved plaintiff's claim of a property right in
limestone located at the bottom of a lake floor pursuant to a lease
granting plaintiff the right to mine that limestone and damage
based on the building of a levee which prevented mining. The

(continued...)

App. 30

Accordingly, the court rejects defendant’s argument that the
City lacks a- cognizable property interest in its water
transmission system due to navigational servitude.

Having concluded that plaintiff possesses a cognizable
property interest, and just prior to addressing defendant’s
contention that the doctrine of laches bars plaintiff's claims,
it is appropriate to briefly turn to the' issue of whether the
City’s claim sounds in tort. The court notes that although
defendant raises in its April 30, 2001 answer the defense that
plaintiff's cause of action fails because it sounds in tort,
defendant, upon specific inquiry by the court, no longer

difference herein is that the City is not claiming a property right to
a body of water or submerged land leased by the City within a
body of water itself. Here, plaintiff is claiming an interest in its
own structures and equipment that happen to be located on land in
navigable waters. The Supreme Court cases cited in Coastal
Petroleum are inapposite to this lawsuit. For example, Twin City
Power involves a claim of the use of navigable waters for
plaintiff's hydroelectric plant. 350 U.S. at 232-34. also involved
the taking of water power rights. United States v. Grand River
Dam Authority, 363 U.S. 229, 231-33, 4 L. Ed. 2d 1186, 80 S. Ct.
1134 (1960). In United States v. Commodore Park, Inc., 324 U.S.
386, 391-93, 89 L. Ed. 1017, 65 S. Ct. 803 (1945), the issue therein
involved the government’s dredging of a navigable bay which
caused the deposit of dredged materials in a creek, thus reducing
the value of riparian property contiguous to the creek. Similarly, in
State of Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S.
508, 525-26, 85 L. Ed. 1487, 61 S. Ct. 1050 (1941), the issue
therein involved whether the government could construct a dam,
which the State of Oklahoma alleged, if built, would impound river
waters and cause flooding onto valuable oil-producing property.
All of these cases are inapposite to the scenario presented by the
City involving physical damage caused by the government’s
alleged activity.

App. 31

asserts that the court lacks subject matter jurisdiction over
_ this claim because plaintiffs claim constitutes a tort. The
court further notes in this regard that both this court and the
Federal Circuit have held that where the government is
charged with tortious acts stemming primarily from a
contractual obligation, the plaintiff's claim must arise from
and be based upon a breach of contract suit and not on the
tort. See, e.g. McAbee Construction v. United States, 97 F.3d
1431, 1433 (Fed. Cir. 1996); Olin Jones Sand Corp. v. United
States, 225 Ct. Cl. 741, 745 (1980); Fountain v. United
States, 427 F.2d 759, 761, 192 Ct. Cl. 495 (Ct. Cl. 1970),
cert. denied, 404 U.S. 839, 30 L. Ed. 2d 73, 92 S. Ct. 131
(1971). Accordingly, because of the government’s
withdrawal of its assertions that plaintiff's claim sounds in
tort and because the court perceives no basis to disagree with
defendant, no further examination by the court is deemed
necessary on this issue.

2. Defendant’s Laches Argument

The court must also address whether the City’s claim is
time-barred, both with regard to the statute of limitations
yoverning suits in this court, and under the doctrine of laches,
which defendant has asserted as a defense in its reply brief to
the court. The court finds that it is not.

With respect to the statute of limitations governing claims
in this court, suits must be brought within six years of the
accrual of the claim. 28 U.S.C. § 2501. Accrual takes place
when all the events necessary to give rise to the alleged
liability have occurred. Chipps v. United States, 19 Cl. Ct.
201, 203 (1990) (citations omitted), aff'd, 915 F.2d 1585
(Fed. Cir. 1990). In the instance of takings, accrual of a
claim occurs as of the date of the alleged taking. See Banks
v. United States, 314 F.3d 1304, 1308 (Fed. Cir. 2003) (“The
accrual of a takings claim where the government leaves the
taking of property to a gradual physical process occurs when

App. 32

the situation has stabilized.”); Boling v. United States, 220
F.3d 1365, 1370 (Fed. Cir. 2000) (“In general, a takings
‘claim accrues when ‘all events which fix the government’s
alleged liability have occurred and the plaintiff was or should
have beer aware of their existence.’”) (citing Hopland Band
of Pomo Indians v. United States, 855 F.2d 1573, 1577 (Fed.
Cir. 1988)); Seldovia Native Assoc., Inc. v. United States, \44
F.3d 769, 774 (Fed. Cir. 1998) (the key date for accrual
purposes is the date on which the plaintiff's land has been
clearly and permanently taken).

In this instance, the City alleges that in the summer of
1995 and continuing into 1997, landslides, alleged to have
been caused by Corps’ operation of the Reservoir, caused
damage tothe City’s water transmission pipelines and
pumphouse to the point that the City’s property was
irreparable. Suit commenced on December 20, 2000, thus
falling within the Tucker Act’s requisite six-year statute of
limitations period.

Despite the fact the City’s claim meets this statutory
requisite, defendant argues that the equitable doctrine of
laches should be applied to bar plaintiffs lawsuit. In
particular, defendant asserts the defense of laches against
plaintiff's argument that because the City never assented to
the terms of the Easement, the Easement’s release language
does not preclude suit. Defendant argues that if the Easement
eontained terms other than those the City agreed to, the City
should have stated so in October 1978, at the time the
Easement was finalized, instead of during this present
litigation.

Normally, under RCFC 8(c), the affirmative defense of
laches must be plead in the first responsive pleading or it is
deemed waived and excluded. See Todd v. United States,
292 F.2d 841, 843, 155 Ct. Cl. 87 (Ct. Cl. 1961); Dean v.
United States, 10 Cl. Ct. 563, 568 (1986). Defendant failed

App. 33

to include laches as an affirmative defense in its April 30,
2001 answer. However, this court has allowed the defense of
laches to be raised upon a motion to dismiss or a motion for
summary judgment, despite a party’s failure to affirmatively
raise the defense in its answer, in light of the liberal policy of
the Federal Rules of Civil Procedure, upon which this court’s
rules are based. Dean, 10 Cl. Ct at 568 n.10; see also Al-
Kurdi v. United States, 25 Cl. Ct. 599, 604 (1992).'°

In order to successfully bar a plaintiff's claim based on
the doctrine of laches, the proponent of the defense must
show (1) that plaintiff unreasonably delayed in asserting its
cause of action, and (2) that plaintiff's delay resulted in
prejudice to defendant. Lincoln Logs Ltd. v. Lincoln Pre-cut
Log Homes, Inc., 971 F.2d 732, 734 (Fed. Cir. 1992); Conner
v. United States, 10 Cl. Ct. 110, 112 (1986). The burden of
establishing inexcusable delay and prejudice is on the
proponent and failure to prove both elements is fatal to the
establishment of laches. Costello v. United States, 365 U.S.
265, 282, 5 L. Ed. 2d 551, 81 S. Ct. 534 (1961).

Defendant argues that the City should be precluded from
asserting its compensable takings claim because the
Easement was issued twenty-four years ago and, accordingly,
if the City rejected the terms of the Easement (in particular,
the hold harmless language that defendant argues bars the
City’s takings claim), then the City should have objected to
the easement language at the time of issuance, and not
twenty-four years later.

With respect to defendant’s laches argument, defendant
has not shown that plaintiff unreasonably delayed in asserting
its cause of action. The cause of action in this matter is the

os , . , i. . .
° For a more detailed discussion of waiver of affirmative
defenses in this court, see discussion infra pp. 28-30.

App. 34

alleged taking of the City’s water transmission system
resulting from defendant’s conduct of lowering and raising
water levels, allegedly causing landslides and damage to the
City’s water transmission system. Defendant has not argued
any delay or prejudice with respect to when plaintiff opted to
bring its lawsuit; in this instance, in the year 2000, five years
after the first signs of damage. Without evidencing that
plaintiff unreasonably delayed in bringing its takings claim,
or any prejudice stemming from such delay, defendant’s
laches defense fails.

The lengthy delay of which defendant complains does not
regard the timing of plaintiff's lawsuit, but, rather, the time
that has lapsed between when the Easement was issued (or at
least received by the City) and plaintiff's challenge to its
validity. This argument more appropriately describes an
assertion of equitable estoppel, as opposed to laches. The
applicability of the doctrine of equitable estoppel to this
matter is discussed in much further detail below.

B. Substantive Arguments

1. Applicability of the Easement’s Release Clause

a. The City’s Challenge of the Validity of the Easement

Having satisfied the jurisdictional requisites for this court
to entertain this matter, the court must now address the
substantive issue as to whether the release language
contained in the Easement bars the City’s claim. According
to defendant, paragraph 7 of the Easement contains the
following language:

The United States shall not be responsible for
damages to property or injury to persons which may
arise from or be incident to the use and occupation of
the said premises, nor for damages to the property of

App. 35

the grantee, nor for damages to the property or injuries
to the person of the grantee’s officers, agents,
servants, or employees, or others who may be on said
premises at their invitation or the invitation of any one
of them, arising from or incident to government
activities, and the grantee shall hold the United States
harmless from any and all such claims.

Def.’s Ex. 26 at 64.

Defendant asserts that the release language in the
Easement precludes plaintiff's takings suit because the
language shields the government from all liability. Plaintiff
counterargues that this language does not preclude lawsuit
because defendant has not shown that the City agreed to the
terms of the release.

In general, a release will operate to discharge the
government from ail claims arising under the applicable
agreement. Dairyland Power Co-op. v. United States, 16
F.3d 1197, 1203 (Fed. Cir. 1994) (finding that because a
valid release was executed, plaintiff's claim for contract
damages was barred); Kenbridge Construction Co. v. United
States, 28 Fed. Cl. 762, 765 (1993) (citations omitted). “A
_ release may .. . preclude the later assertion of a takings claim
when ‘circumstances indicate that a release of a takings claim
had been contemplated and bargained for.” Henderson
County Drainage District No. 3 v. United States, 60 Fed. Cl.
748, 752 (2004) (citing Henderson County Drainage District
No. 3 v. United States, 55 Fed. Cl. 334, 343 (2003)
(Henderson I). \n the case of government contracts, a
contractor’s execution of a release that is complete on its face
reflects the contractors unqualified acceptance and
~greement with its terms and is binding on both parties.
Kenbridge Construction, 28 Fed. Cl. at 765 (citing B.D. Click
Co. v. United States, 614 F.2d 748, 756, 222 Ct. Cl. 290 (Ct.
Cl. 1980)). However, also in the case of government

App. 36

contracts, tiuere are special and limited circumstances under
which a claim may be prosecuted despite the execution of a
release. /d. (citing Mingus Constructors, Inc. v. United
States, 812 F.2d 1387, 1395 (Fed. Cir. 1987)). These include
mutual mistake, conduct of the parties acknowledging claims
after a release, obvious mistake or oversight, and fraud or
duress. /d.

In interpreting a release, the court must first ascertain
whether the language clearly bars the asserted claim. King v.
Dept. of the Navy, 130 F.3d 1031, 1033 (Fed. Cir. 1997),
aff'd afier remand, \78 F.3d 1313 (Fed. Cir. 1999) (table). If
the provisions are clear and unambiguous, they must be given
their plain and ordinary meaning. McAbee Construction, 97
F.3d at 1435; Alaska Lumber & Pulp. Co., Inc. v. Madigan, 2
F.3d 389, 392 (Fed. Cir. 1993). The parol evidence rule
forbids the admission of additional evidence when language
of an easement is complete and unambiguous, and when there
is no contention that the easement was executed as a result of
fraud, accident or mistake. McAbee Construction, 97 F.3d at
1435 (finding no ambiguity in easement language expressly
permitting the Corps to deposit and fill waste on plaintiff's
land and to perform any other work necessary and incident to
the Corps’ dam replacement project).

For example, in Bistline v. United States, the Court of
Claims found that the release clause in an easement barred
plaintiffs’ claim for inverse condemnation. Bistline v. United
States, 640 F.2d 1270, 1274, 226 Ct. Cl. 282 (Ct. Cl. 1981).
There, plaintiffs claimed that the construction and operation
of the Albeni Falls Dam project by the Corps caused their
property to wash away and erode. In particular, the taking of
plaintiffs’ property occurred when adverse storm winds,
coupled with project waters, cut away the banks of plaintiffs’
land above the limits of the flowage easement held by the
government and washed portions of their property into the
reservoir maintained by the Corps. The flowage easement

App. 37

contained a clause releasing the government from damages
by reason of the overflow of water caused by the construction
and operation of the Albeni Falls project. The court there
found that the release barred plaintiffs’ takings claim. /d. at
1275. The affidavits presented demonstrated that the amount
paid for the easements, approximately $20,000, was to
compensate owners for the actual flooding and taking of land
lying below an elevation of 2062.5 feet. In addition, the
court found that the language in the easement granted the
government the perpetual right to intermittently overflow,
flood and submerge all of the subject land lying above and
below the 2062.5 elevation mark. /d. at 1274. The release
clause did not specify that the right to the intermittent
flooding of the land was limited to a specific contour
elevation. /d. The general release language relieved the
government from “all claims and damages that have accrued
or may hereafter accrue to any or all of the above described
lands by reason of the overflow of water occasioned by the
construction and operation” of the project. /d. The court
found this language to completely and unambiguously bar
plaintiffs’ claim.

If a release is ambiguous as to the scope of its coverage,
the court will construe the language to effect the parties’
intent at the time they executed the release and allow the
introduction of parol evidence to determine that intent. Cray
Research, Inc. v. United States, 41 Fed. Cl. 427, 436 (1998)
(“If a written contract is unclear, or not integrated, prior or
contemporaneous extrinsic evidence that does not contradict
the written language of the contract may be introduced to
establish its meaning.”); see also Dureiko v. United States,
209 F.3d 1345, 1356 (Fed. Cir. 2000) (finding the phrase
“demolition and removal” contained in a release to be
ambiguous since the phrase could refer to the government’s
removal of debris pertaining to the removal of mobile homes,
or the removal of any debris). For example, in Henderson
County Drainage District No. 3, 60 Fed. Cl. at 750, the Corps

App. 38

built a nine-foot Navigation Project in the Upper Mississippi
River. In order to support commercial river traffic, the Corps
maintained a nine-foot channel depth using a series of locks
and dams to control pool levels. During high-water flow
conditions and flogd events, the lock and dam controls were
taken out of operation, and the river ran in its natural state.
From the late 1930’s until the 1950’s, the United States made
annual payments te-fifteen drainage districts for additional
pumping costs incurred by the drainage districts due to the
high river stages caused by the project. Congress authorized
payments to the drainage districts in exchange for releases
waiving future claims arising out of the operation and
maintenance of the Navigation Project. Plaintiffs filed a
takings claim asserting that the operation of the Navigation
Project by the Corps caused excess seepage from the
Mississippi River. This, plaintiffs alleged, triggered
additional pumping costs within the drainage districts and left
the Henderson County levee severely eroded. /d. at 751. The
government argued that the takings claim was barred by the
releases. However, the court found that the releases did not

bar plaintiffs’ takings claim because there was no specific
language explicitly stating that plaintiffs’ takings claims were
barred. /d. The ambiguity of the release’s scope of coverage
forced the court, in the absence of evidence of the parties’
mutual intent, to construe the language against the drafter.
Id. at 757.

Because plaintiff is challenging its assent to the terms of
the Easement, the court must address whether a valid
easement was assented to by the parties in this case.
Acceptance requires 4 manifestation of assent to the terms
made by the offeree in a manner invited or required by an
offeror. Anderson v. United States, 344 F.3d 1343, 1355
(Fed. Cir. 2003) (for acceptance to occur, there must be a
manifestation of an intent to agree to the terms offered, such
as, in the case of Winstar-related claims, documents
containing statements evidencing the government’s promise

’

App. 39

to permit the amortization of goodwill) (citing Restatement

. (Second) of Contracts § 18 (1981)). Generally, “[a] person’s
Signature on a written instrument normally indicates assent to
the terms of that document.” Nicholson v. United States, 29
Fed. Cl. 180, 188 (1993) (in the context of debt instruments
finding valid debt agreement was created, even though
plaintiff asserted that she never acceded to the placement of
certain property as collateral, since plaintiff's signature on
agreement unequivocally showed assent to terms of the debt
agreement); Carpenter v. United States, 4 Cl. Ct. 705, 714
(1984) (in the context of trust agreements - finding that
signature on trust created valid trust agreement since
agreement expressly declared intent to create a trust and
convey interest) (citing Rossi v. Douglas, 203 Md. 190, 199,
100 A.2d 3, 7 (1953)).

Defendant contends that the City assented to the terms of
the Easement when, on January 30, 1978, Mayor Klein
executed an Assurance of Compliance Under Title V1 of the
Civil Rights Act of 1964, which purportedly was Exhibit C of

the Easement. It is not explicitly clear from the Easement
language whether the City’s signature on the Assurance
demonstrated assent to the terms of the Easement. In other
words, it is not clear that the Easement, combined with the
Assurance, constitutes one complete, integrated document,
especially in light of the fact that (1) the Assurance was
signed in 1978, five years after the first easement was
drafted, and (2) the Assurance refers to the unrelated issue of
civil rights.

Parol evidence is admissible to show the extent to which
a written agreement is integrated. McAbee Construction, 97
F.3d at 1434 (citations omitted); Sylvania Electric Products,
Inc. v. United States, 458 F.2d 994, 1006, 198 Ct. Cl. 106
(Ct. Cl. 1972); Coggeshall Development Corp. v. United
States, 29 Fed. Cl. 264, 269 (1993) (the court may consider
both the document itself and extrinsic evidence to determine

App. 40

whether parties intended for the deed to be a final, integrated
document). A fully integrated writing is one where the
parties have agreed that all of the terms and conditions were
expressly contained within the four corners of the document
itself. McAbee, 97 F.3d at 1434. In McAbee, the court found
that the United States made no represeniation or promise that
was not already expressly contained in the easement at issue.
ld. The plaintiff thus carried an extremely heavy burden in
overcoming that attestation to the document’s finality and
completeness. Jd.

Defendant has an extremely heavy burden to overcome
here as well. As far as integration of the Assurance with the
Easement, defendant has not demonstrated that the Assurance
was integrated with the Easement in such a way that the
City’s assent to the terms of the Assurance would also
represent its assent to the terms of the Easement. Neither
party has demonstrated that the Assurance was integrated into
the-Easement. The Easement contains no references to any
external documents or agreements. See United States v.
Winstar, 518 U.S. 839, 860-70, 135 L. Ed. 2d 964, 116 S. Ct.
2432 (1996) (for a discussion on integration). The execution
of the Assurance does not validate the Easement without
proof of that intent, which is lacking here.

Finding that the City’s signature on the Assurance does
not constitute aceeptanee of the terms of the Easement, the
next inquiry for the court is to determine whether the City
should be estopped from asserting that the release language is
inapplicable. The court is of the opinion that the facts and
contentions which the government has set forth in its
pleadings to raise an affirmative defense of laches are just as,
if not more so, appropriately characterized as equitable
estoppel. The government’s reply and opposition to
plaintifF’s motion for summary judgment, while
characterizing its affirmative defense as “laches”, set forth

App. 41

the basic foundation for an assertion of equitable estoppel
when it stated:

Here, the City failed to come forward in a timely
fashion after it received the easement in 1978 and
assert that it did not agree to the hold harmless clause.
Instead, the City stayed silent for 24 years .... Here
the doctrine of laches must be found to bar the City’s
assertion at this late date that it did not agree to the
terms of the easement.... In any case, its effort to
disclaim the easement some 24 years after the fact,
and mount a collateral attack on the terms of the
easement, should be rejected.

Def.’s Reply on its Mot. to Dismiss at 7-8. Thus, the court
believes that the facts upon which the government asserts a
laches defense are appropriately characterized as equitable
estoppel, and the pertinent inqui

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1333%3A1. Public record. Not legal advice.